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.