CA Annulment--Proof?

[averygrace]

What is the name of your state (only U.S. law)? CA

I have a hearing coming up for an annulment case. Unfortunately, I can not afford legal advice. So any kind of advice would be greatly appreciated! I was married to an Alaskan resident in March. (I am a CA resident, if this is an important detail.) From March until I left Alaska in July I was unable to consumate the marriage. We both agree on the grounds of nullity and there are no children or properties involved. My question is, do I need to bring some sort of proof to the hearing? And if so, what exactly would constitute as proof? Thank you so much for any input you can give!

 

[mistoffolees]

It doesn't look as though you meet the requirements for an annulment. Failure to consummate isn't one of them (INABILITY to consummate is, though).

You need to be in CA for 6 months to file for a divorce. If you're both in agreement and there are no children or assets to speak of, you may be eligible for summary dissolution once you meet the 6 month requirement. That would probably be your least expensive way to go:

Divorce/Legal Separation/Annulment

 

[LdiJ]

It doesn't look as though you meet the requirements for an annulment. Failure to consummate isn't one of them (INABILITY to consummate is, though).

You need to be in CA for 6 months to file for a divorce. If you're both in agreement and there are no children or assets to speak of, you may be eligible for summary dissolution once you meet the 6 month requirement. That would probably be your least expensive way to go:

Divorce/Legal Separation/Annulment

Not in this case. The OP was not in AK long enough to establish residency there, therefore the OP still had CA residency when the OP returned to CA.

 

[Ohiogal]

Not in this case. The OP was not in AK long enough to establish residency there, therefore the OP still had CA residency when the OP returned to CA.

That is not the way it works. He would have needed to be in California for the required amount of time IMMEDIATELY preceding filing. To file in November he would have had to be there since May. that is to FILE in November.

OP you may find your case being dismissed for lack of jurisdiction.

 

[LdiJ]

That is not the way it works. He would have needed to be in California for the required amount of time IMMEDIATELY preceding filing. To file in November he would have had to be there since May. that is to FILE in November.

OP you may find your case being dismissed for lack of jurisdiction.

I am going to disagree. I believe it would be considered a temporary absence in this case.
Just like a child maintains residency in a state until residency is established in another.

 

[averygrace]

Thanks for all the quick responses!

Just to clairfy a few things, my residency never changed. It was only a temporary abscense. And secondly, it isn't just failure to consumate, it is incapability to consumate. I hope that helps.

 

[mistoffolees]

And secondly, it isn't just failure to consumate, it is incapability to consumate.

That changes things. Your original post said you had not done so in the months of your marriage. If one partner is truly incapable of consumating, AND the condition is incurable, then it may be grounds for an annulment.

 

[CourtClerk]

2210. A marriage is voidable and may be adjudged a nullity if any
of the following conditions existed at the time of the marriage:
(a) The party who commences the proceeding or on whose behalf the
proceeding is commenced was without the capability of consenting to
the marriage as provided in Section 301 or 302, unless, after
attaining the age of consent, the party for any time freely cohabited
with the other as husband and wife.
(b) The husband or wife of either party was living and the
marriage with that husband or wife was then in force and that husband
or wife (1) was absent and not known to the party commencing the
proceeding to be living for a period of five successive years
immediately preceding the subsequent marriage for which the judgment
of nullity is sought or (2) was generally reputed or believed by the
party commencing the proceeding to be dead at the time the subsequent
marriage was contracted.
(c) Either party was of unsound mind, unless the party of unsound
mind, after coming to reason, freely cohabited with the other as
husband and wife.
(d) The consent of either party was obtained by fraud, unless the
party whose consent was obtained by fraud afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with
the other as husband or wife.
(e) The consent of either party was obtained by force, unless the
party whose consent was obtained by force afterwards freely cohabited
with the other as husband or wife.
(f) Either party was, at the time of marriage, physically
incapable of entering into the marriage state, and that incapacity
continues, and appears to be incurable.

Whether this applies to someone being unable to have sex is up to interpretation.....

 

[Ohiogal]

Thanks for all the quick responses!

Just to clairfy a few things, my residency never changed. It was only a temporary abscense. And secondly, it isn't just failure to consumate, it is incapability to consumate. I hope that helps.

Did you have mail going to Alaska? Did you have a job up there? Did you have contacts up there? Did you get an Alaskan driver's license? Did your address change after you got back to CA?

 

[mistoffolees]

Whether this applies to someone being unable to have sex is up to interpretation.....

I believe that in CA, 'unable to enter into the marriage state' is interpreted as 'unable to have sex'. One of those old language things.

 

[CourtClerk]

I believe that in CA, 'unable to enter into the marriage state' is interpreted as 'unable to have sex'. One of those old language things.

As I said.... it is subject to interpretation, it is not an automatic.

 

[mistoffolees]

As I said.... it is subject to interpretation, it is not an automatic.

At least one attorney treats it as automatic:
California Annulment (Nullity) Law & Procedure - Family Law Attorney (Lawyer)

The California Appeals court also seems to define it that way:
Physical incapacity:
"Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f); Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762, 14 Cal.Rptr. 793, 794] "

However, it MIGHT be that if the parties cohabited before the wedding, it would be presumed that the 'injured' party knew about the inability to enter the marriage state and proceeded anyway, thus removing the right to annulment. I'm not so sure about that one, though.

 

[CourtClerk]

At least one attorney treats it as automatic:

and at least 2 judges I know don't see it that way

 

[mistoffolees]

and at least 2 judges I know don't see it that way

Unless they're on the CA Supreme Court, the appeals court citation above overrules them.