lisabutterfly said:
Are there time limits on annullments in CA? I was married in May 99'. My husband was incarcerated Aug 99' and still is. We have been apart over a year and a half. Can I still file for an annullment? Or do I have to file for a divorce?
[Edited by lisabutterfly on 03-23-2001 at 02:02 PM]
My response:
Unless you meet certain stringent requirements, you'll need a divorce.
A California marriage may be ended by a judgment of nullity only if the marriage is void or voidable. [Re Estate of Karau (1938) 26 Cal App 2d 606, 80 P2d 108; for further discussion of void marriage] A marriage cannot be annulled unless there was something legally wrong in its inception; if valid when contracted, it can never be annulled. [McDonald v McDonald (1936) 6 Cal 2d 457, 58 P2d 163, 104 ALR 1290]
A judgment of nullity restores the parties to the status of unmarried persons. [Fam C §2212(a)] However, this is technically a correct statement only for voidable marriages, which require legal action to terminate the relationship. A void marriage technically never existed, so the parties need not be "restored" to the status of unmarried persons. In either case, the judgment has the effect of declaring the marriage void from the beginning. [Sefton v Sefton (1955) 45 Cal 2d 872, 291 P2d 439] The judgment is conclusive only as to the parties to the proceeding and those claiming under them. [Fam C §2212(b)]
Even if an annulment is granted, a court may still order support, fees, and a division of property for a putative spouse (one who believed in good faith that the marriage was valid). [Fam C §§2251, 2254, 2255] However, if the court finds that the party seeking relief did not enter into the marriage in good faith and thus is not a putative spouse, such relief will be denied. [In re Marriage of Liu (1987, 6th Dist) 197 Cal App 3d 143, 242 Cal Rptr 649]
Voidable marriages
As more fully explained in separate sections below, a marriage is voidable and may be declared a nullity if any of the following six conditions existed at the time of the marriage, and if the annulment action is brought by the proper parties within the limitations period specified by Fam C §2211:
(1). Minority [Fam C §§301, 302, 2210(a)]
(2). Unsound mind [Fam C §2210(c)]
(3). Fraud [Fam C §2210(d)]
(4). Force [Fam C §2210(e)]
(5). Physical incapacity [Fam C §2210(f)]
(6). Bigamy (exceptions to void marriage) [Fam C §§2201(b), 2210(b)]
A voidable marriage is valid for all civil purposes, between the parties and against the world, until it is declared a nullity. [Re Estate of Gregorson (1911) 160 Cal 21, 116 P 60]
Fraud
Consent to a marriage obtained by fraud renders the marriage voidable unless the innocent party afterwards, with full knowledge of the facts constituting the fraud, freely cohabits with the other as husband and wife. [Fam C §2210(d)] Annulment on the ground of fraud is considered an extreme remedy requiring a fraud that goes to the very essence of the marriage relation. [Millar v Millar (1918) 175 Cal 797, 167 P 394] This ground requires that fraudulent intent not to perform a duty vital to the marriage must exist in the offending spouse’s mind at the very moment that the marriage contract is made. [Bruce v Bruce (1945) 71 Cal App 2d 641, 163 P2d 95] Because of the public policy fostering marriage, there is a presumption against fraud which can be defeated only by evidence which is clear and convincing. [Handley v Handley (1960, 1st Dist) 179 Cal App 2d 742, 3 Cal Rptr 910]
A nullity action on this ground must be brought by the marital party whose consent was obtained by fraud, and must be brought within 4 years after discovery of the facts constituting the fraud. [Fam C §2211(d)]
Although the fraud itself is subjective in that it must exist in the offending party’s mind, the modern trend has been to assess a claim of fraud on an objective standard. Thus, if the innocent party would not have entered into the marriage relationship if he or she had known of the fraud, the marriage should be nullified.
The following fraudulent intentions, representations, and circumstances, among others, have been determined to be sufficient to support a judgment of nullity:
(1). Concealment of pregnancy at the time of the marriage [Hardesty v Hardesty (1924) 193 Cal 330, 223 P 951]
(2). Intention not to have intercourse [Maslow v Maslow (1953) 117 Cal App 2d 237, 255 P2d 65]
(3). Secret intention not to live with spouse [Handley v Handley (1960, 1st Dist) 179 Cal App 2d 742, 3 Cal Rptr 910]
(4). Concealment of sterility [Aufort v Aufort (1935) 9 Cal App 2d 310, 49 P2d 620]
(5). Fraudulent inducement of spouse to marry solely to gain favorable immigration status [Re Marriage of Rabie (1974, 2nd Dist) 40 Cal App 3d 917, 115 Cal Rptr 594]
However, the following fraudulent intentions, representations, and circumstances, among others, have been determined not to be sufficient to support a judgment of nullity:
(1). A shoe salesman’s false representation that he owned his own shoe store, that he was 28 years old rather than 22, and that he had served overseas in the army [Mayer v Mayer (1929) 207 Cal 685, 279 P 783]
(2). Representation that male was a "man of means" who would support woman as she was accustomed, where he was actually impecunious and harassed by creditors [Marshall v Marshall (1931) 212 Cal 736, 300 P 816]
(3). Turning "from a prince" (polite, nice, clean) "into a frog" (dirty, unattractive, refusing to work, drinking problem) [In re Marriage of Johnston (1993, 4th Dist) 18 Cal App 4th 499, 22 Cal Rptr 2d 253]
Although fraud may be grounds for nullity, it is unlikely that allegations of marriage induced by fraud can serve as the basis for a separate civil action for damages. While a divided Supreme Court seemed to sanction such an action [Langley v. Schumacker (1956) 46 Cal.2d 601, 297 P.2d 977], the decision was roundly criticized and rejected in a subsequent legislative enactment providing that "[a] fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages." [CC §43.4]
Later cases have rejected civil actions for fraud based on purportedly false representations that served as an inducement to marry, reasoning that they violate California’s anti-heart-balm statutes and are incompatible with a statutory scheme of no-fault-divorce. [Askew v. Askew (1994, 4th Dist.) 22 Cal.App.4th 942, 28 Cal.Rptr.2d 284]
Comparison with dissolution
Dissolution and nullity are based on contrary assumptions. A dissolution action seeks an end to a valid marriage due to causes which arose during the marriage. A nullity proceeding is brought because facts existed at the time of the marriage that precluded a valid marriage from ever taking place.
Nullity has the following potential advantages over dissolution:
(1). The residence requirements for a dissolution (3 months in the county and 6 months in the state (Fam C §2320)) do not apply in a nullity proceeding.
(2). There is no waiting period for the finality of a nullity judgment (by comparison with the minimum 6-month waiting period for a dissolution (Fam C §2339)); when a judgment of nullity is entered, the parties are restored immediately to the status of unmarried persons. [Fam C §2212(a)]
(3). For the potentially supporting spouse, there is no spousal support after judgment and none prior, unless the potentially supported spouse qualifies as a putative spouse (one who believed in good faith that the marriage was valid). [Fam C §2254]
(4). It avoids religious objections to dissolution.
(5). A dissolution action can only be brought by the parties, whereas others may have standing to bring a nullity action. [Fam C §2211]
(6). The relation-back doctrine may revive certain preexisting rights, such as a pension or trust payments, that were ended by the doubtful marriage, where a dissolution would not act to restore the right.
However, there are disadvantages:
(1). Since many of the grounds for the judgment of nullity contain elements of fault on the part of the other spouse, a petition for a judgment of nullity is more likely to be contested than a petition for dissolution; a contested nullity proceeding may take more time than an uncontested dissolution proceeding and is more likely to produce bitterness and other undesirable effects.
(2). A party seeking spousal support, costs, and attorney fees or division of property in a nullity proceeding must establish his or her status as a putative spouse [Fam C §§2251(a)(2), 2254, 2255]; in the absence of such proof, the party will be precluded from support and fees and could be precluded from a division of property.
(3). Even if the action is not opposed, the party seeking annulment may be required to prove the grounds for the judgment, since many courts often require this proof even in a default.
(4). Various statutes of limitations in nullity proceedings may bar the action. [Fam C §2211]
Good luck to you,
IAAL
