A JUDGMENT of nullity is when the Court deems a voidable marriage or a void marriage as never having taken place for reasons such as a defect in age, unsound mind, fraud, force, physical incapacity, bigamous, or incestuous marriage.
A judgment of nullity should be considered only where the validity of the marriage is in doubt. A nullity is maintained on the theory that, for reasons existing at the time of the marriage, no valid marriage ever occurred. This means that the marriage, from its inception or start, is either void or voidable. Whereas a dissolution of marriage seeks to terminate a valid marriage, a nullity action seeks to inquire whether any such marriage ever existed.
There are many reasons why a nullity would be better in certain circumstances. In terms of procedure, the mandatory six months waiting period does not apply in a nullity proceeding. The marital status can be terminated immediately, thus freeing the parties to remarry sooner.
On the contrary, in a dissolution proceeding, there is a mandatory six months waiting period before a marital status is terminated. This means that even though parties are anxious in freeing themselves, they must wait six months before their marital status is changed to a “single” status.
One advantage in a nullity proceeding is the effect on property rights. A spouse to a voidable marriage who wants to defeat community property claims by the other spouse may be more successful in a nullity proceeding. In other words, the issue of community assets and community debts may become a non-issue if a nullity of judgment is pursued. Since the marriage is not valid, community property laws will not necessarily apply.
For example, let’s say I bought a house that I purchased before I was married. The mortgage payments on that house would last me twenty years before it was actually mine, free and clear. Two years after I bought the house, I got married and the “community” contributed to the payments of the house mortgage. In other words, our earnings during marriage were used to pay the mortgage.
After one year of marriage, I initiated a nullity proceeding because I found out that my husband was previously married and did not obtain a divorce from that marriage. He was married to someone else at the time when we got married. Therefore, I have a nullity action because my marriage was considered void from the start.
Because of the nullity proceeding, my husband’s potential claim of a community property interest in the house can be defeated. He will argue that community earnings were used to pay for the mortgage of one year. He will claim that during that one year, he is entitled to 50 percent of the equity created within that time span.
However, I will argue that community property laws do not apply because the marriage never took place from its inception since he was previously married. He knew about the previous marriage, yet he intentionally entered into a bigamous marriage with me. In all likelihood, the house would be mine free and clear from my husband’s community property claim.
If I had filed for a common divorce because I did not know about nullity proceedings, my husband’s claim of a community property interest would succeed. He would have been entitled to 50 percent of the community interest during our marriage. Because I filed for a nullity – what was mine remained mine.
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Ethelene F. Salas, Esq. is a practicing family law attorney. Ms. Salas is a Filipino-American born in the Philippines, raised in the United States, and speaks Tagalog fluently. The Law Offices of Ethelene F. Salas is located at two locations – the main office at 100 N. Barranca St., Suite 700, West Covina, CA 91791 and affiliated offices at 18000 Studebaker Road, Suite 700, Cerritos, CA 90703. To schedule an appointment with her, please call (626) 858-4646 or visit www.EFS-Law.com.
