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The Difference Between a Divorce and an Annulment in California

Married spouses in the State of California can dissolve their unions by filing for divorces or annulments in California Courts. While the forms, filing procedures, and end results of both processes are the same, the legal grounds for filing either petitions differ in various aspects. Generally, a divorce terminates a valid and existing marriage and the parties are recognized as having been married in the past. On the other hand, annulment invalidates a marriage as though it never existed. There are various misconceptions surrounding divorces and annulments in California and learning how they differ from each other can help ease the filing process and also teach one how to respond when served by a spouse.

What is a California Divorce Decree?

In California, a divorce decree or a divorce judgment is a court record that indicates the end of a marriage and establishes the terms of the dissolution. Generally, a divorce process is incomplete until the divorce decree is signed by the family court judge. This document especially addresses the rights and obligations of both parties in a divorce including spousal and child support, division of debt responsibility, child custody, child support, visitation rights, and property division. A divorce decree legally binds both parties to adhere to the terms of their divorce. These records are generally maintained at the specific county superior court where the divorce papers were filed. They should not be mistaken for divorce certificates that are kept by the California Department of Public Health.

The records contained in documents related to family court include both marriage and divorce records. Both types of records contain information that is considered very personal to the parties involved, and it is recommended that those parties maintain these records with care in order to make changes in the future. The personal nature of these records results in both being considerably more difficult to find and obtain when compared to other types of public records. In many cases, these records are not available through either government sources or third party public record websites.

What is an Annulment in California?

Annulment, otherwise referred to as nullity of marriage or nullity of domestic partnership is a form of dissolution where the court totally invalidates a marriage or domestic partnership. Typically, when a family law judge grants an annulment, the parties are legally treated as if their marriage never existed in the first place. Those filing for an annulment in the state must prove that their marriage is void or voidable as codified under sections 2200, 2201, 2210, and 2211 of the California Family Code. A void marriage is lawfully invalid from the very beginning of the marriage. A voidable marriage, however, is legal until one party proves that some factors accompanied the consent to marry. While religious annulments are granted in some religious organizations, they are not legally authorized and recognized in California law. The grounds for obtaining a religious annulment are different than those for a court-granted annulment. However, both types of annulments have essentially the same effect--the marriage is treated as though it never existed.

Annulment vs Divorce in California

In California, the legal grounds for obtaining divorce and annulment are not the same. Annulment is usually granted if a marriage is deemed to be either defective or never valid from a legal standpoint in the first place. If a petitioner is able to prove in court that a marriage was never legal, the union will be regarded as though it never happened in the eyes of the law. The grounds for annulment in California as depicted in California Family Code §§ 2000 - 2002, 2200 - 2201 include:

  • Incest: Where a married couple have blood relation
  • Bigamy: Where one spouse is established to be in another registered domestic partnership elsewhere
  • Age at the time of domestic partnership or marriage: If the party filing the divorce was less than 18 years at the time of domestic partnership and marriage
  • Unsound mind: If either party was medically established to have an unsound mind at the time of marriage
  • Prior existing marriage: This is different from bigamy in that the marriage took place after an ex-spouse is absent for up to 5 years and not known to be living and thought to be dead
  • Physical incapacity, where either party is physically unable to consummate the relationship
  • Fraud: where either party entered a marriage under false pretenses in a bid to deceive the other party to agree to the marriage
  • Where either party consented to marry as a result of force

Furthermore, there may be no rights and obligations relating to the children, property, and debts in annulments. Typically, children born during such marriages are legally presumed to be non-existent. This means that the judge is tasked with establishing parentage for such children. Likewise, annulled marriages are not subject to the legal rights of California's property laws. Given that there are exceptions, persons considering an annulment are advised to talk to a family law lawyer to weigh the pros and cons applicable to their situations.

On the other hand, California is a "no-fault" divorce state. As such, a party may decide to break up based on irreconcilable differences. Under California Family Code § 2310, divorce may also be granted based on incurable insanity. In this case, the plaintiff must prove with medical and psychiatric testimony that the insane defendant is incurably insane both at the time of filing and going forward.

Divorce also differs from annulment based on the statute of limitations or deadlines for filing a lawsuit. Generally, divorces in California do not have a deadline and any married person can file for a divorce at any time unlike annulments that cannot be filed after a stipulated deadline. The time-frame within which a person must file for an annulment varies depending on the reason for the nullification. For instance, those filing for an annulment based on fraud, force, or physical incapacity must do so within four years of getting married. A petitioner seeking to capitalize on age at the time of marriage must file for annulment within 4 years after attaining 18 years.

Is an Annulment Cheaper Than Divorce In California?

No, annulments are generally more costly and financially tasking than divorces in California. To get a civil annulment in court takes a great deal of time and resources. It requires a lot of paperwork, evidence, and even investigations. Attorneys may advise Californians to file for divorce rather than annulment. This is because the latter is very rare and may not be granted if the petitioner does not prove all elements of their claims.

What is an Uncontested Divorce in California?

In California, an uncontested divorce is one in which a couple works together and agrees on the terms of the divorce including how assets will be divided, how support and alimony will be paid, joint, and how debts will be cleared. Parties in uncontested divorces also draft unanimous custody and visitation agreements. Also, if a party does not respond to a divorce petition, the case will proceed uncontested or by default. Although uncontested divorce is the least expensive form of divorce in California, the proceedings may be complex. As such, California Courts advise intending divorcees to consult family law attorneys to determine if an uncontested divorce is in their best interests.

Where to get an Uncontested Divorce Form in California?

California state law requires residents to follow the same filing processes for both uncontested and contested divorces. The procedure is complicated and involves many forms that can leave many confused and overwhelmed. These forms can be picked up in person from the county Superior Court - Family Division. The Unified California Courts also feature them on their website. Below is a step-by-step guide on how to complete the forms:

Step 1: Start the case by completing and printing at least a Petition — Marriage/Domestic Partnership (Form FL-100 and a Summons (form FL-110) and, if there are minors of the union, a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105). Those in need of more room to list property and debts should use the Property Declaration Form FL-160. In addition, affected petitioners should consider completing the Child Custody and Visitation (Parenting Time) Application Attachment Form FL-311 to ensure they don't leave anything out of their child custody and visitation requests.

Step II: Contact the applicable court's Family Law Facilitator or Self-Help Center to have them review the completed forms. Do not hesitate to ask them questions concerning child support and alimony issues

Step III: Fill out additional paperwork. Some county superior courts require petitioners to complete some local forms to facilitate the process. Visit the court's website to view and download these forms. Alternatively, call the clerk's office or speak with the county Family Law Facilitator or self-help center to enquire about applicable local forms. After completing all required forms, take the forms to the county superior court clerk's office. California Government Code 70670 allows the clerks to charge a filing fee of $435. Make at least two copies of all the forms. One for record keeping, and another copy for the potential defendant. Typically, the court retains the original copy.

STEP IV: Serve the forms. Anybody above the age of 18 that is not the petitioner can deliver or serve the forms along with a blank Response —Marriage/Domestic Partnership Form FL-120. Also, do not forget to file the Proof of Service of Summons Form FL-115 with the court detailing how and when the respondent was served.

Note: At the same time or within 60 days of filing the forms, the petitioner must also complete and serve the following forms and documents on the respondent:

  • Declaration of Disclosure Form FL-140
  • Expense Declaration Form FL-150
  • Schedule of Assets and Debts Form FL-142
  • Property Declaration Form FL-160
  • Tax returns filed by the petitioner in the last two years

These forms are not filed with the court. The only document filed with the court at this stage is a Declaration Regarding Service Form FL-141 telling the court that disclosures have been served. Within 60 days, the respondent is also required to complete and serve the same disclosure documents in the same manner as the petitioner. If this does not occur, the case will automatically proceed by default or uncontested.

Records and case files of uncontested divorces are public records maintained by the clerk of county superior courts. Although anyone can access these records, parts of uncontested divorce records can also be sealed by statute or court rule.

Records that are considered public may be accessible from some third-party websites. These websites often make searching simpler, as they are not limited by geographic location, and search engines on these sites may help when starting a search for a specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must provide:

  • The name of the person involved in the record, unless said person is a juvenile
  • The location or assumed location of the record or person involved. This includes information such as the city, county, or state that person resides in or was accused in.

Third-party sites are independent from government sources, and are not sponsored by these government agencies. Because of this, record availability on third-party sites may vary.

How do I get a copy of my Divorce Decree in California?

In compliance with California Government Code 68150, Interested persons can obtain copies of divorce decrees in person, by mail, email, or online. To submit a request for a divorce decree in person, visit the applicable clerk of the superior court during normal business hours. Note that requesters are required to cover the cost of searching and copying divorce decrees maintained by the courts. The fee for certification as well as research (if no case number is provided) is $15 each. Because these fees keep changing, querying parties are advised to contact the court beforehand to enquire about their current search and copying rates.

Before sending a request for a California divorce decree by mail, be sure to speak with the clerk to get their mailing details and preferred payment methods. Otherwise, visit the county superior court website to view information on how to navigate the request process. While some courts such as Santa Clara Superior Court provide online request forms, others may require written requests. If the latter is the case, make sure to write down all required information including the divorcing party's name, case file number, and date the case was closed. Post all requests along with payment and a self-addressed stamped envelope for return postage. Also, include a daytime phone number for the clerk to reach out when a reason to do so surfaces.

Divorce and marriage records may be available through government sources and organizations, though their availability cannot be guaranteed. This is also true of their availability through third-party websites and companies, as these organizations are not government-sponsored and record availability may vary further. Finally, marriage and divorce records are considered extremely private due to the information they contain, and are often sealed. Bearing these factors in mind, record availability for these types of records cannot be guaranteed.

How do I get a California Divorce Decree Online?

Some California Superior Courts feature online record finding tools for locating and purchasing non-confidential divorce decrees or divorce judgment documents. While these records can be ordered online, they are not freely available for download from the internet. Be aware that the online-ordering availability and guidelines differs from one court to another. For instance, the Los Angeles County Superior Court offers an online service where the public can purchase certified or informational copies of their divorce judgment documents for a fee. Orange County Superior Court also provides online ordering tools for divorce cases filed from 1997 to the present day.

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