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Mediation and Litigation

Does Your Marriage Qualify for an Annulment?

Posted on in Family Law

California mediation attorney, CaIifornia annulment lawyerAnnulment is a term many people have heard, but in legal practice annulments are rare. Still, if your marriage qualifies for an annulment, it could change many things about the dissolution of your marriage.

An annulment is granted when the parties wish to end their marriage, and a court determines that the marriage was never valid and never existed. A divorce is granted when the parties wish to end their marriage, and the marriage was validly entered into.

A marriage can always be annulled if there is incest or bigamy. Incest happens when spouses are close blood relatives. Bigamy is when a spouse is already married to someone else when he or she marries a second time.

Marriages can also be declared invalid because:

  • One party was under 18 at the time of the marriage;
  • Bigamy, if the former spouse was absent for five years and thought to be dead;
  • One spouse’s unsound mind at the time of the marriage. Unsound mind means that the spouse was unable to understand marital obligations;
  • The marriage was entered into as a result of fraud. For example, fraud could be present where a spouse only consented to the marriage to get a green card;
  • One party agreed to the marriage because of force; and
  • One spouse was physically incapable of consummating the marriage when it was entered into.

If you think your marriage qualifies for an annulment, you may be limited in the amount of time you have to bring an annulment action. Many annulment actions must be brought within four years of the marriage.

If you are granted an annulment, the court will treat your marriage as if it never existed. This has several ramifications. For example, any children conceived during the marriage will not be presumed to be of the husband/father. You will have to petition the court to establish paternity in order to determine child custody and child support.

In addition, if your marriage is annulled, community property law will generally not apply when dividing assets. An annulment and a divorce are two separate processes for different circumstances.

If you are going through a divorce or annulment, it is recommended that you speak to an attorney to determine what steps you need to take to end your marriage as each case is different. Contact an experienced San Jose divorce attorney, located in Los Gatos, at the Ventresca Law Firm today at 408-395-8822 for a free initial consultation.



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