What is the difference between an annulment and a divorce?

WHAT is the difference between a divorce and an annulment?  Many people think these concepts are the same and interchangeable. There are many differences between the two concepts.  A divorce ends a valid existing marriage.  In a nullity, a determination is made about the validity of the marriage itself.  When a marriage is annulled, it has the same effect as if the marriage never existed.  A nullity results in a void.

In California, any spouse can obtain a divorce regardless of the reason.  A common basis used is a catchall phrase “irreconcilable differences.”  However, anyone who wants to end a marriage can end the marriage and there is nothing the other spouse can do to stop that.  However in a petition for nullity, the court will not automatically grant you the nullity.  There has to be a legal basis for seeking the nullity as outlined in the family code.  Some of the basis are 1) entering into a bigamous marriage 2) incestuous marriage 3)fraud in obtaining the other spouse’s consent to marriage 4) incurable physical incapacity 5) unsound mind among others.  The petitioner would have to prove one of these grounds in court to be able to get a nullity.

In a Nullity, there is a statute of limitations.  That means you have to file your nullity within a certain time period depending on the basis for seeking the Nullity.  Each ground has a different statute of limitation.  For example, if you are filing the nullity based on fraud, you have to file within 4 years of discovering the fraud.  If you blow the statute of limitation, this can be used as a defense to dismiss your case. On the other hand there is no statute of limitation in a divorce.  You can file a divorce at any time regardless of how long you have been separated from your spouse.

In a divorce, husband and wife are presumed to be the parents of children born during the marriage.  In a Nullity, the marriage has no validity so it will affect the presumption of parentage of the children.  The Court will have to make a finding of parentage for the children on a different basis before it can make orders relating to custody, visitation, and support.

The treatment of spousal support (alimony) is different between the two.  In a divorce, the spouse that has less earning capacity and access to resources may seek an award of spousal support.  This is not available in a Nullity since the marriage is invalid and there is no spouse as a result.

The division of property is also different.  In a divorce, community property is divided equally between the spouses.  In a nullity, since there is no valid marriage, there is no community property created and properties are not divided between the spouse.  Similarly, neither party can receive survivorship benefits and inheritance rights from the other party in a Nullity.

Finally, there are different immigration consequences between a divorce and a nullity when an immigrant spouse is involved.  In a divorce, the immigrant spouse who obtains a greencard from a US Citizen spouse stands a bigger chance of keeping his or her greencard and ultimately become a US Citizen.  In a nullity, the immigrant spouse may lose their greencard status when the marriage is found to be invalid since it is the basis for the greencard.  It can jeopardize the immigration status of the legal permanent resident spouse.

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Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C.  This article is not a solicitation.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail: [email protected] or visit our website at Kenreyeslaw.com