Annul a Marriage in California

To annul a marriage is to declare that it never existed in the eyes of the law. A court will grant an annulment if the court finds that the marriage is not legally valid due to legal impediments that existed at its inception such as incest, bigamy, and mental illness. Get some tips on how to annul a marriage in California before beginning this legal proceeding.

Steps

Meeting the Requirements

  1. Determine if you meet the requirements. If a marriage is incestuous, meaning the parties were close blood relatives, or bigamous, meaning a party in the marriage was already married or in a registered domestic partnership with someone else, the court will never find that the marriage was valid. Other reasons for a finding of invalidity are:
    • A spouse was under the age of 18 at the time the marriage began;
    • There was a prior existing marriage but the marriage in question took place after the former spouse or domestic partner was missing for five years or more and is generally thought to be not living anymore;
    • One or both of the spouses is considered to be of unsound mind or to not understand the nature of marriage and its accompanying obligations and responsibilities;
    • The marriage was entered into as a result of fraud and the fraud was something vital to the relationship that directly affected the deceived party;
    • Consent for the marriage was obtained as a result of force;
    • One or both of the parties was physically incapacitated, and thus unable to consummate the marriage, and the incapacitation continues and is considered to be irreparable. [1]
  2. Ensure you have met the time frame. To obtain an annulment you must meet the deadline for filing, or the statute of limitations. The statute of limitations for an annulment in California depends on the reasons for the annulment.
    • The statute of limitations for annulments based on age, force, and physical incapacity is four years within the time the marriage was entered into.
    • For annulments based on fraud, the statute of limitations is four years within the time the fraud was discovered.
    • An annulment based on a prior existing marriage can be filed at any time as long as both parties to the current marriage are alive.
    • An annulment based on an unsound mind can be filed at any time before the death of either one of the spouses. [1]
  3. Understand the effects. Since an annulment voids a marriage and it is as if the marriage never occurred, the parties to the annulled marriage will not have the same rights as those who choose to get a divorce instead of an annulment. If there are children that came out of the annulled marriage, the presumption of paternity that arises from marriage is also void so in an annulment involving children, the judge must also establish the paternity of the children of that marriage.

Filling out the Proper Forms

  1. Fill out the petition. The filing of the petition will begin the annulment as a legal proceeding. Use Form FL-100 and provide the court with the required background about the marriage, the reasons for the annulment, and what you want the court’s decision to state. [2]
    • When filling out the petition, be sure to check the correct box for an annulment, that is, the box for the nullity of the marriage rather than for a dissolution (divorce) or legal separation.
    • You can also use the petition to ask for a divorce in the event the judge finds you do not qualify for an annulment. To do this, check both the nullity and dissolution box and write in “in the alternative,” near the dissolution box. [3]
  2. Complete the summons. The summons serves as notice to the other party to the marriage and orders that person to respond to the petition within 30 calendar days. This document should be completed and also read carefully as it contains important information regarding restraining orders that go into place with the filing of the petition, division of property, and fees. [4]
  3. Make a Declaration. A written declaration explains to the court why the court should grant the annulment and should include any important information relevant to the case including: (1) the names of the parties, (2) relevant dates, including the date of the marriage; (3) the reason why you think you are entitled to an annulment (unsound mind, age, incest, force, fraud, etc.); (4) any other relevant factors that the court should know including but not limited to whether children were produced out of the marriage.
    • Be sure to be clear about the reasons why you meet the requirements for an annulment and to seek legal assistance if you are unclear on any of those requirements. Remember that you must be entirely truthful on this form and all forms since any dishonesty in your representations will be considered perjury.
    • Because this declaration requires asking the court for relief based upon an interpretation of the annulment law in California, it may be necessary to consult with an attorney to properly make the declaration. [5] [6]
  4. Consider other necessary paperwork. If you have children you will also need to fill out Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). [7] Some courts may require additional local forms. Contact the local clerk’s office to determine if any of these additional forms are required. [8]

Filing the Forms

  1. Review and copy your forms. Some courts have a family law facilitator or a self-help center that can help review the required forms and ensure you have properly filled them out. [9] [10] After ensuring your forms are correctly filled out, make several copies of each form so you will have enough copies to file with the court, send to other parties, and keep for your own records.
  2. Calculate the filing fee. You will have to pay a fee to file with your forms in order to begin the proceedings. The court website has information on how much your fee will be. [11] To determine if you qualify for a fee waiver, visit the court’s website. [12]
  3. Find the correct court. You must be a resident of California to file an annulment in California, however, unlike a divorce, there is no minimum residency requirement to file an annulment. You should file your annulment in the county in which you reside.
  4. File the forms with the clerk. Visit the clerk’s office in person, pay the filing fee, and file your completed forms with the court’s clerk's office. [3]
    • In some cases, and depending on the local rules of your county court, you may be able to file the case via mail. However, be aware that this may cause a significant delay in the filing of the case. To determine whether your local court will allow for filing via mail, what to include in your mailing to the court, and where to direct the mailing to, contact the court clerk's office. [13]

Serving the Parties

  1. Find a server. The forms filed with the clerk’s office need to be served on your spouse by a person that meets certain requirements. A server must be someone other than you who is over 18 years old, including:
    • a friend;
    • a relative;
    • the county sheriff’s office; or
    • a person hired to serve legal papers called a process server. [14]
  2. Pick a method of service. All the papers you filed with the clerk, along with a blank response form [15] must be served on the other spouse. Two methods of service are appropriate in an annulment in California:
    • personal service, which means in-person service; or
    • service by mail, which requires the other party to agree to service in this manner and also a completed Notice of Acknowledgement and Receipt. [16][17]
  3. Obtain proof of service. You must file proof that service has been completed. [18] Fill out, copy, and file the proof of service along with the Notice of Acknowledgment and Receipt if service by mail was completed and file it with the same clerk's office that you filed the documentation that was used to begin the annulment proceeding.
  4. Wait for a response. After the forms are served, the other party has 30 days to respond. Whether the other party files a response and whether you and the other party have come to an agreement regarding the annulment will dictate the next steps in the legal proceeding. [19]
    • If the spouse did not file a response and you do not have an agreement, you can file a request for a default judgment in order to obtain the required outcome in the case. [20]
    • If the spouse did not file a response but you do have an agreement, you can write up that agreement and file it with the court in order to obtain a default judgment with an agreement. [21]
    • If the spouse did file a response and you have an agreement, this is called an uncontested proceeding and you can write up your agreement and file it with the court to obtain the desired result. [22]
    • If the spouse did file a response and you do not have an agreement, this is a contested case and you will have to resolve the issues before a judge. [23]

Attending a Hearing

  1. Ask the court for a hearing. In most cases, you will be required to go before a judge during a hearing to obtain. Contact the court clerk to schedule the hearing. [24]
  2. Explain your case to the judge. On the date of the hearing, arrive in court on time, and wait for your case to be called. When you are called in front of the judge, explain the reasons you think you are entitled to an annulment. [24]
  3. Obtain a court order. If the judge finds that you have properly completed the requirements and you have a valid reason for an annulment, she can enter an order granting the annulment. Be sure to keep this order for your records. [24]
  4. Dealing with a denial. If your annulment is not granted, ask the court if your petition can be amended to either fix the problem that is creating an obstacle to the annulment or for permission to file an amended petition requesting a divorce in place of an annulment. If the court agrees to an amended petition, you must re-file the petition reflecting whatever changes the court agreed to when giving permission to re-file. [25]
    • To appeal a decision by the judge in your annulment matter, you must follow the procedure for a civil appeal in California. [26]. Civil appeals can be complicated and the timeline and rules of appeal strict; for those reasons, it is always a good idea to seek the help of an attorney when filing an appeal. [27]

Tips

  • The legal proceedings relevant to and requirements for an annulment can be complicated. It is always a good idea to consult an attorney to help you meet these requirements and ensure the proceedings go smoothly to obtain your desired result. [27]

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Sources and Citations

  1. ↑ 1.0 1.1 http://www.courts.ca.gov/1037.htm#legal
  2. ↑ http://www.courts.ca.gov/documents/fl100.pdf
  3. ↑ 3.0 3.1 http://www.courts.ca.gov/1244.htm#tab8963
  4. ↑ http://www.courts.ca.gov/documents/fl110.pdf
  5. ↑ http://www.courts.ca.gov/documents/mc030.pdf
  6. ↑ http://www.courts.ca.gov/documents/mc031.pdf
  7. ↑ http://www.courts.ca.gov/documents/fl105.pdf
  8. ↑ http://www.courts.ca.gov/find-my-court.htm
  9. ↑ http://www.courts.ca.gov/selfhelp-facilitators.htm
  10. ↑ http://www.courts.ca.gov/selfhelp-selfhelpcenters.htm
  11. ↑ http://www.courts.ca.gov/documents/filingfees.pdf
  12. ↑ http://www.courts.ca.gov/selfhelp-feewaiver.htm
  13. ↑ http://www.courts.ca.gov/1089.htm
  14. ↑ http://www.courts.ca.gov/selfhelp-serving.htm
  15. ↑ http://www.courts.ca.gov/documents/fl120.pdf
  16. ↑ http://www.courts.ca.gov/1002.htm
  17. ↑ http://www.courts.ca.gov/documents/fl117.pdf
  18. ↑ http://www.courts.ca.gov/documents/fl115.pdf
  19. ↑ http://www.courts.ca.gov/1035.htm
  20. ↑ http://www.courts.ca.gov/8409.htm
  21. ↑ http://www.courts.ca.gov/8410.htm
  22. ↑ http://www.courts.ca.gov/8411.htm
  23. ↑ http://www.courts.ca.gov/1238.htm
  24. ↑ 24.0 24.1 24.2 http://www.courts.ca.gov/1244.htm#tab8979
  25. ↑ http://www.courts.ca.gov/1247.htm
  26. ↑ http://www.courts.ca.gov/selfhelp-appeals.htm
  27. ↑ 27.0 27.1 http://www.courts.ca.gov/selfhelp-findlawyer.htm

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