If you have determined that there is no way to salvage your marriage, your next step will determine how you wish to end your relationship legally. In California, your two options to legally sever a marriage are to undergo a divorce or annulment. But how do you determine which route to go?
What is a Divorce?
A divorce is a legally binding method that terminates a marriage between a couple. When you undergo a divorce, you will still have the record of this marriage on legal documents and other official paperwork. There is a residency requirement for divorce in California, where one party must be a California resident for at least six months prior to filing.
Grounds for Divorce
California is a no-fault divorce state, which means that the filing party does not need to prove a specific reason for divorce when filing for divorce. However, they must acknowledge one of the two situations are present when filing for divorce:
- The marriage is irretrievably broken and cannot be salvaged
- One party in the marriage is mentally incapacitated
However, if the filing party uses the reason that the other party is mentally incapacitated, there is a burden of proof to show the court that the party actually is mentally incapacitated. Because of the burden of proof for this claim, filing for a no-fault divorce is much more common because there is no burden of proof.
What is an Annulment?
An annulment will legally terminate your marriage and wipe the record clean as if you never had been married. Unlike a divorce, it is much harder to obtain an annulment because there are stricter grounds.
Grounds for an Annulment
In an annulment case, the court must grant that the marriage is invalid, typically due to both parties' mental or physical state leading into the marriage. The court would grant an annulment if:
- The couple was under the influence when the marriage took place
- One party was forced to marry through threats or physical violence
- The marriage is incestuous
- One party was currently married at the time of the marriage
- The marriage was a result of fraud
- One party was under the age of 18 when the marriage took place
There is a burden of proof on the filing party to prove to the court their grounds for an annulment is valid.
Differences Between Divorce and Annulment
If you divorce with children, both parties will retain their parental rights; however, if you are granted an annulment and have children, the father will need to establish paternity. Likewise, if you divorce, you can seek spousal support but cannot do so if you are granted an annulment. There is no statute of limitations in a divorce, but there is often one on an annulment, depending on the claim.
Call us today at (619) 485-6476 to schedule your case evaluation with our team of San Diego divorce attorneys.