Law Office of Stephen W. Penn and Associates

Should you get an annulment instead of a divorce?

If you wish to end your California marriage, you have two options: divorce and annulment. While most people choose the former, you may qualify for the latter depending on the precise circumstances of your marriage.

As explained by the California Courts System, when a judge grants you an annulment, it means your marriage was never valid and therefore you were never married at all.

Annulment criteria

California law deems some marriages invalid per se. Two examples are an incestuous marriage between you and someone to whom you are closely related and a bigamous marriage between you and someone who was already legally married to someone else at the time of your marriage.

For all other marriages for which you wish to obtain an annulment, you must go to court and prove one or more of the following:

  • That you were under 18 years of age at the time of the marriage
  • That your spouse induced you to marry him or her through fraud, such as by neglecting to inform you that (s)he was unable to have children
  • That your spouse forced you to marry him or her
  • That your spouse was and is unable to consummate your marriage

Statutes of limitation

Depending on which type of marriage you seek to annul, you have a limited amount of time in which to achieve your goal. For most eligible marriages, you must file for annulment within four years of the date on which your marriage took place or, in the case of fraud, within four years of the date on which you discovered the fraud. If, however, you seek to annul your marriage on the grounds of age, you must file for annulment prior to your 22nd birthday.

Child custody and support issues

If you annul your marriage, bear in mind that any children born to you and your spouse now have no legal father. Why? Because since an annulment means that your marriage was invalid from its beginning, this in turn means that California does not presume that the "husband" in your invalid marriage fathered the child(ren) your relationship produced. If you are a woman, you therefore must establish your child(ren)'s paternity in order to receive child support. Conversely, if you are a man, you must establish your child(ren)'s paternity in order to seek custody of or visitation with them.

This information is not legal advice, but it can help you understand the annulment process and what to expect.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012