What do I have to prove to get an annulment of my marriage in court?

If you decide to pursue a nullity of marriage proceeding in court, you need to consider how you will prove that your marriage should be considered invalid.  This is a crucial aspect of case strategy, and you should make sure that your attorney is well-versed in the law before proceeding.  Experienced counsel – someone familiar with the intricacies of the law – should be consulted.

As discussed in our previous posting on annulments in California, you first need to consider whether your marriage is actually void, or only voidable.  This is an important distinction, and your decision will be based on the applicable statutes, Family Code § 2000 et seq.  Family Code §§ 2200-2201 deal with the grounds for a void marriage (incestuous, bigamous and polygamous marriages), and Family Code § 2210 addresses the statutory grounds for claiming a voidable marriage (minority, prolonged absence, fraud, force, physical incapacity).

An action for nullity of marriage can proceed in one of two ways: the action can proceed by default if the purported spouse does not formally appear in the case, or the proceeding can be contested, which generally results in either a settlement or a trial.  The action is commenced by filing a petition for nullity of marriage, and a copy of that petition must then be served on the opposing party.  Depending on that party’s response (or lack thereof), you can begin determining what elements of your case will need to be developed and ultimately proven.

In a case proceeding by default, where the purported spouse has not filed an appearance, it is up to you and your attorney to prove to the Court why your marriage should be considered invalid.  This can generally be accomplished by presenting evidence to the Court at a default hearing, predominately through your testimony, as to why the marriage should be annulled.  For instance, if you were tricked into getting married based on false pretenses, you would present testimony that demonstrates to the Court the reasons why you believed the marriage was valid when you first entered into the union.  You would also build your case to show when you uncovered the marriage was based on a fraud, as well as present evidence regarding specific instances of fraud.  After a default hearing, assuming your case was proven, the annulment would be granted and the marriage dissolved.

In a contested case, where the purported spouse has filed an appearance and contested your allegations, the proceedings can become more involved.  The basis of your case in a contested matter does not change, but your burden of proof increases: it is up to you to build your case and ultimately prove, over the objection of the opposing party, why the marriage should be declared invalid.   Unlike in a default proceeding, where your allegations remain uncontested because the opposing party has not appeared to defend him or herself, a contested case involves dueling offers of proof.  This is a scenario that begs for the assistance of experienced counsel.

Ariel Tello is an associate with The Buncher Law Corporation in Irvine.  His practice is focused on family law litigation and mediation. For a free consultation, and more information on the process, please contact our office at 949-398-8720.

What should I consider before filing for an annulment?

There are some advantages to consider in filing for an annulment of your marriage, provided you have the discretion to choose between an annulment and a dissolution of marriage:

  • Unlike in a dissolution action – where you must live in the State of California for a minimum of six months and in the county of filing for a minimum of three months – there is no minimum residency requirement in actions for nullity of marriage.
  • There is no six-month waiting period in nullity proceedings.  This means you can seek entry of judgment almost immediately.
  • An annulment may be more in line with your religious beliefs, which might be a reason to consider annulment of your marriage as opposed to dissolution.  Though this is not ultimately an issue the Court will consider when it evaluates the relevant statutory factors, it might make a significant difference to you on a personal or emotional level.

On the flipside, there are some potential disadvantages to consider in filing for an annulment:

  • You have to prove “grounds” to support your petition for nullity of marriage.  Unlike in a dissolution, where the vast majority of clients simply rely on the blanket “irreconcilable differences” without having to offer further proof, a client seeking annulment of marriage must actually prove the underlying case (proving why the marriage is in void or voidable).  This can be a consuming and expensive step that might require a full evidentiary hearing.
  • Prior to filing, you must at least contemplate the effect an annulment may have on your entitlement to community property, or on any property that was acquired or disposed of during the time you were married.  For instance, pursuant to Family Code §2251, if a court determines that a marriage is void or voidable – and finds that either party or both parties believed in good faith that the marriage was valid – the court can declare one or both parties to have the status of a putative spouse and divide the property acquired during marriage, referred to as “quasi-marital property,” in accordance with community property principles.  This is a concept that a qualified attorney can explore with you to determine whether an annulment or dissolution makes more sense from a tactical and economic standpoint.

The decision to pursue an annulment of marriage may or may not be an easy one for you to make.  This can be a difficult area of the area to explore on your own.  Ariel Tello is an associate with The Buncher Law Corporation in Irvine.  His practice is focused on family law litigation and mediation. For a free consultation, and more information on the process, please contact our office at 949-398-8720.

What is an annulment of marriage?

An annulment of marriage operates in similar fashion to a dissolution of marriage: once the Court enters judgment, your marriage is terminated and you are considered a single person again.  There are important distinctions between the two causes of action that this posting will address, but both proceedings ultimately result in the termination of your marriage.

An annulment of marriage should be considered when the actual validity of your marriage is in doubt.  At its most basic level, an action for nullity essentially challenges whether any valid marriage ever occurred.   The granting of an annulment can have drastic consequences that affect your rights to property, spousal support, entitlement to health insurance, or distribution of retirement assets.  Because a nullity of marriage can potentially impact so many economic entitlements a husband or wife may be entitled to, you need to make sure filing for an annulment is in your best interests.  Talking to an attorney who is well-versed in the applicable law is a good first step.

A marriage can either be void or voidable, depending on the facts of your case.  Incestuous marriages are void per se, which means that the marriage – from the time of its inception – is illegitimate.  It makes no difference that the parties may have consented to such a union – an incestuous marriage is void and cannot be “perfected” under the law.  Marriages between parents, children, brothers, sisters, uncles, aunts, nieces, and nephews are void and cannot be cured.  This same general principle applies to bigamous and polygamous marriages.

A voidable marriage is one that is legally defective, but not necessarily illegitimate.  Voidable marriages are those involving minors, fraud, force, prolonged absence, physical incapacity, and/or mental incapacity.  The underlying defects can sometimes be cured, or excused, and the parties themselves can decide whether to pursue an annulment or a dissolution of marriage.  This is where the advice of experienced counsel can help guide you in your decision-making.

Ariel Tello is an associate with The Buncher Law Corporation in Irvine.  His practice is focused on family law litigation and mediation. For a free consultation, and more information on the process, please contact our office at 949-398-8720.

Should I consider an annulment of my marriage or dissolution?

That’s the trending question these days, based on emails we have received and the input from clients: the means of ending marriage. My motivation here is to clarify the topic in a series of posts. Anything that remains unclear, I urge that you contact our office or your attorney.

In California, there are three ways a marriage can be legally dissolved – when one of the married parties passes away; when a judgment of dissolution of marriage is ordered by the Court; or when a judgment of nullity of marriage is obtained.

A “nullity of marriage,” also referred to in California as an annulment, is somewhat rare.  Most clients looking to end their marriage consider a more straight-forward dissolution.  However, an annulment of marriage may be appropriate if your individual circumstances fit within a specific statutory framework that has been carved out by the Legislature for nullity proceedings.

The decision to pursue an annulment of marriage may or may not be an easy one for you to make.  This can be a difficult area of the area to explore on your own.  Ariel Tello is an associate with The Buncher Law Corporation in Irvine.  His practice is focused on family law litigation and mediation. For a free consultation, and more information on the process, please contact our office at 949-398-8720.

Book Review: “Helping Your Kids Cope with Divorce the Sandcastles Way”

Book ReviewI have not made a complete read of this book, but several clients have recommended Helping Your Kids Cope with Divorce the Sandcastles Way by Gary Neuman. One client dropped off a copy, and I agree that it seems like a comprehensive resource that not only offers help to children, but also to divorcing parents who want a better understanding of what their children are experiencing.

During divorce, is it any surprise that children need all the love, support, and guidance parents can offer? So any tool that helps everybody see over the emotional difficulties and complications has got to be good. My sources tell me that the book is based on Neuman’s phenomenally successful Sandcastles program, which has helped more than fifty thousand children cope with divorce. This text contains guidelines that will show readers:

  • How to build a co-parenting relationship–even when you think you can’t.
  • When you or your child should see a therapist
  • Age-appropriate scripts for addressing sensitive issues

One client told me that the book is full of heart-wrenching and enlightening truths spoken by children of all ages. My own quick scan of the book shows that it is for couples who have taken full responsibility and wish to guide their children through a life-changing event.

Some remarkable features of the book, it’s big – more than 460 pages, and covers nearly every divorce situation possible. It’s one of the only books I have seen that includes a discussion on how infants cope with divorce. Among the topics the author deals with – the need to avoid angry and acrimonious fighting in the presence of children; pointers on telling children about the divorce; helping children cope with one parent moving away; custody and visitation. There’s even a chapter on preparing parents on the task of continuing parenting after divorce. He even offers anecdotes about deadbeat moms as well as deadbeat dads.

I suggest this book as a possible resource. It looks sound, it doesn’t make the mistake of delving into legalistic issues (which books of this kind sometimes do), and despite the fact it was published in 1999, as far as I can see, it is very relevant today.

730 Evaluations

If you’ve been looking around for information on the 730 Evaluation, you probably have come to realize that there’s scant – reliable – information that tells you what to expect. The Courts rely on California Evidence Code §730 (ref: leginfo.ca.gov) to appoint a child custody evaluator (thus the “730” designation).  Evaluators are usually a licensed professional behavioral practitioner (e.g., family therapist, licensed clinical social worker, psychiatrists, psychologists) that have completed specialized domestic violence and child abuse training programs.

In the area of Family Law, most 730 experts are appointed to gather facts from any person or persons that have an intimate relationship with the parents and children, conduct psychological testing, and provide the Court with a recommended custody arrangement based on what they believe is appropriate and sound.

It is more likely that the court will appoint a child custody evaluator in any contested proceeding involving child custody or visitation rights. The goal, of course, is to determine what is in the child’s best interest.  The Court will likely order a “730 Eval” in cases involving move-away or when there is a history of domestic violence, mental abuse, drinking or drug use by either party. The Court may appoint a 730 evaluator even when abuse history is not recent. Any competent attorney should be able to gain a favorable outcome when the abuse (domestic violence, drug use et cetera) is more recent.

In my experience, a judge rarely appoints a child custody evaluator unless the parties stipulate to an evaluation. Child Custody Evaluators can get very expensive and a judge will not impose these kinds of expenses unless it is necessary. In some cases, a judge may order payments made to the evaluator in installments. Often times, there is so much animosity between the parties that they each want to prove to each other via a third party that they are the better parent. If emotions run high enough, money may be no object.

Personally, I believe that 730 eval should be avoided. Both sides ought to realize that it is not in the best interest of the children put them in such difficult and compromising position. Evaluations can be very intrusive, moreover it places a child in the untenable position of having to choose between two parents.  However, if the situation is unavoidable, and funds are short, a court appointed child custody mediator may be a better choice. This is a free service, a can likely save each party a lot of money.

Note that the mediator is mandatory in any case where an Order to Show Cause (for Custody and Visitation) has been filed.

Truth and a Baby

You’ve heard the old anecdote that the truth is a flower in the eye of the beholder. For every ‘truth’ there are many other truths – facts of the matter that give us a full picture of what is happening and why. Yet, truth is not an Easter egg hunt nor should it be manipulated and mashed into something to fit a particular viewpoint.

Since we cannot send mental pictures to the people assembled in the court who will hear our story, we must painstakingly create the story before their very eyes. Years, perhaps decades, of facts dates, intentions, promises, and incidents must be reassembled into one concise package. Therefore, in a court of law, truth becomes a construct of facts behind a story, the very bones of your case.

Yes. One can tell a story to hide truth, but in the end the story eventually frays. That’s when persistence and boldness may betray the storyteller, giving truth a chance to prevail.

I believe that’s a core point to the story of the Judgment of King Solomon (1 Kings 3:16:28). Two women came to wise Solomon, each claiming to be the mother of a child. One claimed that the other accidentally smothered her own son while sleeping and had exchanged the dead child with the living one to give the appearance that the living child was hers.

When the deliberations were complete, King Solomon drew his sword and declared that the only fair solution was to split the living baby in half so that each woman could receive a fair share of the child. The child’s true mother quickly capitulated and begged Solomon to spare the child’s life. Solomon saw the truth in her and the child was restored to his true mother.

Albeit brutal, this biblical story offers a glimpse into how the law and truth work together. First, we must recognize that the baby is the truth and all actions made by Solomon, symbolizes the court’s intention to give the truth a chance to speak. Solomon’s desire was to restore the child to his real mother, but the presentation of both mothers was compelling. Truth was being silenced.

This baby – like truth – is vulnerable and unknowing  and cannot speak for itself. It must therefore rely completely on the words of competing sides and the impending judgment from someone who knows neither side, nor the truth that clings to the edges of justice like a frail flake of snow.

This the very nature of every case. The truth – in all of its glory and power – is as vulnerable and unknowing as the baby in Solomon’s court.  Fortunately for the baby, Solomon’s gamble on human nature revealed truth. In modern courts, it is your attorney’s duty speak for your truth, show its legitimacy, and build your story.

This is the nature of every case we undertake.