can I get an annulment

[CalifTom]

I got married about 3 months ago and realized I made a big mistake. Can I get my marriage annulled or must I go through divorce proceedings?

 

[I AM ALWAYS LIABLE]

I got married about 3 months ago and realized I made a big mistake. Can I get my marriage annulled or must I go through divorce proceedings?

My response:

If "time" and making a "mistake" are your reasons for a California annulment, then the answer to your question is no, you don't qualify for an annulment.

However, you can file for a Summary Dissolution in California as long as you've met the 6 month State residency requirement, and the 3 month County residency requirement. There is no time limit for an annulment, but annulment is not an option for you.


Requirements for summary dissolution:

If the parties have been married for five years or less, have no minor children, and have limited assets and liabilities, the use of the "summary dissolution procedure" as provided for in Fam C §§2400–2406 may be the appropriate choice of remedy. Though most actions under the summary dissolution procedures are filed by the parties acting in propria persona, there is no prohibition against attorney involvement. Where an attorney is involved, his or her function normally consists of drafting a dissolution agreement and ensuring that all necessary documents of title are properly executed.

The parties’ community property assets must have a value of less than $25,000, which amount includes any retirement plans or deferred compensation, but does not include any automobiles the parties may own. In addition, neither party may have separate property assets, excluding all encumbrances and automobiles, in excess of $25,000. [Fam C §2400(a)(7)]

The parties must have no minor children, including children born before the marriage, during the marriage, or adopted during the marriage. Further, the wife, to her knowledge, may not be pregnant. [Fam C §2400(a)(3)] Each party must waive spousal support [Fam C §2400(a)(9)], and a written agreement setting forth the division of assets and liabilities must accompany the filing. Further, in the agreement the parties must acknowledge that they have executed all necessary documents to effectuate the agreement. [Fam C §2400(a)(8)]


Procedural requirements:

The proceedings are commenced by the filing of a joint petition on the Judicial Council approved form by the husband and wife executed under penalty of perjury, and the payment of the $194.00 filing fee [Fam C §2401; using Judicial Council Form 1295.10 (joint petition for summary dissolution of marriage)] At least one party to the proceeding must meet the jurisdictional requirements set forth in Fam C §2320. The sole ground for a summary dissolution is irreconcilable differences that have led to the irremedial breakdown of the marriage. [Fam C §2400(a)(2)]

The filing of the petition includes a waiver of the right to appeal or to move for a new trial [Fam C §2400(a)(10)], and includes a request that the marriage be dissolved. [Fam C §2400(a)(12)] The parties must also acknowledge that they have read and understood the summary dissolution brochure that is available through the clerk’s office. [Fam C §2400(a)(11)]

Six months after the filing of the petition, either party may request that the judgment of dissolution of marriage be entered [Fam C §2403], unless one of the parties, prior to that time, has filed with the clerk a notice of revocation, which notice will terminate the proceedings. [Fam C §2402; for Judicial Council Form 1295.20 (Request for Final Judgment on Summary Disloution), using for Judicial Council Form 1295.30 (Notice of Revocation of Petition for Summary Dissolution), see § 2:15]

The marriage will not automatically terminate at the conclusion of the 6-month period. One of the parties must file a request for the entry of judgment in order to terminate the marital status and restore the parties to single persons.

Even though a judgment may be entered, it is subject to a motion to be set aside on equitable grounds, or on a motion under Code of Civil Procedure §473. [Fam C §2405(a)] Further, if the motion to set side shows that the parties did not meet the requirements in Family Code §2400, the court must set aside the judgment as to all matters except those relating to status. [Fam C §2405(a)]

Good luck to you.

IAAL

 

[CalifTom]

So then both parties must comply? I brought someone here from a foreign country and it seems she only wanted a ticket to America. She has since moved out of my home and gotten her own place somewhere. These are not grounds for annulment?

Thank you.

 

[I AM ALWAYS LIABLE]

My response:

Okay, now you're talking about "Fraud". I wish you would have mentioned your circumstances earlier, and that way I could have gotten to the heart of your issue sooner.

In California, fraud is a ground for an annulment - - but, good luck proving it.

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]

IAAL

 

[CalifTom]

So I would not be able to prove fraud under my circumstances? She packed up and left less than two months after we were married.

 

[I AM ALWAYS LIABLE]

My response:

I have no idea what you can, or cannot, or be able to, prove. Read everything I wrote to you, entirely again, and then go see a Family law attorney for specific advice and a plan of action.

Did you read number (5), above ?

Good luck to you.

IAAL