Dissolutions, Legal Separations and Annulments

What’s the difference?

In California, there are three ways to end a marriage or registered domestic partnership: divorce (legally referred to as “dissolution”), annulment (or, “nullity”), and legal separation.

Divorce

California is a “no-fault divorce” state, meaning that the parties do not have to prove marital misconduct in order to get a divorce. Instead, a dissolution of marriage can simply be granted if a party asserts that the marriage has broken down due to “irreconcilable differences” or “permanent legal incapacity to make decisions”. If the court finds that irreconcilable differences have caused the irremediable breakdown of the marriage, or, in the alternative, that one spouse has a permanent incapacity to make decisions, the divorce will be granted. In effect, either spouse can decide to end the marriage, even if the other spouse does not wish to do so. If one spouse refuses to participate in the case, the moving spouse can proceed by “default” (without the other party’s participation in the proceedings).

In a divorce proceeding, the parties can request the court make orders on issues such as child custody and visitation, child support, spousal support , the division of property and assets, and who will pay the attorney fees and costs. The time it takes to obtain a Judgment of Dissolution of Marriage (divorce) will depend upon a number of factors, including the complexity of the issues involved and the cooperation (or lack thereof) between the parties in providing all of the required information and disclosures of assets, liabilities, and income. However, in no event can the parties be restored to the status of “unmarried persons” sooner than six months from the date of acquisition of jurisdiction over the Respondent (as above described). That fact notwithstanding, if the parties are able to submit a complete Judgment of Dissolution to the court setting forth all of the terms regarding child and spousal support (if any), custody and visitation (if any), and property division before the passage of six months, the Judgment can be entered with the prospective date (six months from the date jurisdiction was attained over the Respondent) of the termination of marital status set forth in the Judgment.

In order to file for a dissolution of marriage in California, certain residency requirements must be fulfilled: either one of the spouses has to have lived in the state for at least six months prior to filing, and in the county where the divorce is being filed for at least three months prior. If these residency requirements have not been met, the parties will not be permitted to file for divorce; however, they still may file for a legal separation instead.

The marital dissolution is a legal proceeding that ends the marriage.  Once a Judgment of Dissolution of Marriage seeking the termination of the marital status of the parties is signed by the Judge and filed with the Court, the parties will be restored to the status of “unmarried persons” so long as the court had acquired jurisdiction over both parties for at least six months prior to the submission of the Judgment of Dissolution. The court “acquires jurisdiction” over the party who commences the divorce at the time that party’s Petition for Dissolution is filed with the court. This party is designated as the “Petitioner”. The court “acquires jurisdiction” over the second party when that party, designated as the “Respondent”, is served with the Petition for Dissolution (and the other ancillary documents required to be filed at the commencement of the proceedings).

Legal Separation

The grounds for legal separation are the same as for Marital Dissolution. Parties seeking a legal separation can also obtain any of the same court orders available in a divorce proceeding, including child support, spousal support, custody and visitation, property division, and domestic violence restraining orders. A legal separation will not be granted without the consent of both parties, and if one party instead seeks a dissolution of marriage, the dissolution will be granted over the request for legal separation.

Unlike a dissolution of marriage, a legal separation does not end a marriage or terminate the parties’ marital status. The parties are still technically married and would have to file for a dissolution of marriage in the future if they wished to remarry. There are many reasons why spouses may choose to file for a legal separation instead of a divorce. Some choose legal separation for religious reasons or personal beliefs. Others do not want to get a divorce, but wish to live apart and separately decide their own money, property, and parenting issues. Additionally, parties might prefer to be legally separated for financial reasons, such as maintaining spousal health insurance plans or certain spousal retirement benefits that require a couple to be married. Legal separation is also available to those spouses who do not meet the six-month residency requirement to file for a divorce in California. Once enough time has passed so that the residency requirement is met, the parties may amend the Petition for Legal Separation and convert it into a Petition for Marital Dissolution.

Annulment

An annulment (or, a “nullity of marriage”) changes the status of the marriage such that legally, it never existed. Whereas a dissolution proceeding seeks to terminate marital status, a nullity proceeding seeks to determine whether any such status ever existed. In other words, while a judgment of dissolution terminates a valid marriage, an annulment declares that the marriage was not legally valid from its inception. This means that in order to be granted an annulment, the court must determine that the marriage is either void or voidable. Marriages that are “void” include those that are incestuous or bigamous. Marriages can be declared “voidable” if, at the time of the marriage, one of the parties was under the age of 18, of unsound mind, or had a physical incapacity. Additionally, “voidable” marriages include those that are the result of fraud or force.

Like a divorce, a judgment of nullity of marriage restores the parties to the status of “unmarried persons.” However, because an annulment treats a marriage as if it never existed, parties do not have the same rights and obligations as those seeking a divorce or legal separation. For example, spousal support cannot be granted after a judgment of nullity. The timing requirements for filing for an annulment in California often depend on the grounds for which the annulment is sought. The state’s laws set forth a statute of limitations for each of the voidable grounds for annulment. If the statute of limitations has already expired, filing for a nullity of marriage will no longer be an option, and the parties will have to file for a dissolution of marriage or legal separation instead.