The short 20 minute video will provide an overview of the difference between divorce legal separation and annulment in California. We discuss the legal basis needed to file an annulment in California, why some people choose to file a California legal separation proceeding, and provide an in depth discussion of the California divorce process for an uncontested divorce with a marital settlement agreement.
Transcript of Video – Annulment, Legal Separation, Divorce
Hi my name is Sandy McCarthy from A People’s Choice. We are a legal document preparation service and have been in business for over 35 years and today’s topic is going to be about the differences between divorce, legal separation and annulment.
Statutory Reasons For Annulment in California
For an annulment, there are basically two premises in order to have a marriage in California be determined that it should be annulled. The first is that the marriage is not a valid or legal marriage. The second is that the marriage can be determined to be invalid.
For a marriage to be declared legally not valid at all, the marriage would have to be either incestuous, which is when the parties who are married or are in a registered domestic relationship are close blood relatives. The second option would be if it was a bigamous marriage, which means a spouse or domestic partner is already married to or in a registered domestic partnership relationship with someone else.
Those are the two basis for determining that a marriage is not valid at all.
The more common option to get a marriage annulled is when it can be declared invalid and there are several different reasons for that.
One is the age of one of the parties. For example, if one of the parties was under the age of 18 and they did not have the consent of the parents, then that would be considered an invalid marriage.
Another option would be if there was a prior existing marriage or domestic partnership. If either party was already married to someone else, then the parties could seek an annulment of the current marriage. Now this is different than say a bigamy type of situation. In bigamy, that usually happens when a person deliberately remarries without being divorced. In this particular situation, it is usually because, for example, a party thought that they were divorced and then they discovered that they were not divorce; or the party had been missing for a period of time and they thought they were dead and then they got married again. It is a little different with regards to a prior existing marriage.
A third option would be unsound mind. Unsound mind is basically when a party is either unable to understand what they are doing or they did not have the capacity to understand what they were doing. We have done several annulments when the parties went to Las Vegas on a whim and they partied and got drunk and decided to go out and get married and then the next day woke up and said “oh my gosh…what did we do?” That would be a basis for unsound mind.
The fourth option would be fraud. If either party married the other person with certain understandings that were false, understandings that were represented to them by the other person and then later were found out to be false. For example, if the person said that they were 40 and they ended up turning out to be 60. That would be a false representation. So it could be a variety of different things but the basis for using this as far as getting an annulment would be based on the premise that you were told something by the other person, and you got married under a certain assumption based upon the representation, and then those representations were, in fact false.
The fifth option would be force. Force would be basically if someone was forced to marry someone else against their will. I have never actually dealt with an annulment under those circumstances but that would be the situation for force.
Another option would be physically incapacitated. That usually has to do with the inability to consummate the marriage, or something of that sort.
Those are the specific reasons for annulment. Often people will call the office and they say “Oh I have been married for a month, I’ve been married for less than a year. I want to get my marriage annulled” thinking that the reason for getting an annulment is if it is just a short marriage and that is not true. In order to get an annulment under California law, you would actually have to file a Petition and allege one of those specific reasons.
Also, in an annulment, it does require a court hearing where the person that is seeking the annulment will have to go in front of a judge and actually provide oral testimony to substantiate the basis that they are claiming for the annulment proceedings.
Why People Get a Legal Separation in California
The next possibility for people terminating their marriage would be to ask for a legal separation.
Often people are confused about the differences of a legal separation as compared to a divorce and what the advantages and disadvantages of both are.
Basically, the process for a legal separation and the process for a divorce is exactly the same. The only difference is that in the end, the parties are still legally married. The paperwork and the process is exactly the same. Obviously, in the end in a legal separation, the fact is that the marriage is still a valid, ongoing marriage, neither party could get remarried. In a legal separation, you would divide all of the assets, you would divide all of the debt, you would divide retirement, settle property issues; and maybe even handle custody and visitation and spousal support issues, but again, in the end the parties are still legally married.
There are several different reasons why couples choose to do a legal separation over a divorce. Probably the most common one is for religious convictions. Their religion dictates that divorce is not accepted or divorce is not allowed. In order for the individuals to live the rest of their life but be able to also have some legal protection is by going through a legal separation vs. an actual divorce.
If someone is going through a legal separation, sometimes they file it because they aren’t really sure they want to go through a divorce. Obviously when you complete a divorce proceeding and the court terminates the marriage, that’s final. In a legal separation, you do resolve all of the issues regarding the marriage, but in the end the parties are still married and so if they do decide to later reconcile, they are still legally married to each other.
Another really common reason for people to go through a legal separation is because of the ability to retain certain benefits of being married that you otherwise would lose if you did file a divorce. The most common benefit that people use a legal separation for is with regards to health insurance. If two people go through divorce proceedings, the parties can no longer be on the other party’s health insurance once the divorce is finalized and the marriage has been terminated.
In a legal separation, however, one party can still keep the other party on an existing medical insurance policy so that they can continue to receive those kinds of benefits. So often people use the legal separation proceeding, especially older people, older people that don’t have an inkling that they are going to get married again. Rather than going through a divorce and having the other party lose insurance benefits, they elect to use a legal separation so that the other party can keep those benefits.
There has been some talk that I have heard. I haven’t actually experienced any cases where this has become a problem, but I have heard that some insurance companies are now creating some problems if they hear that parties have gone through a legal separation and one party is trying to keep the other party on their insurance policy. I don’t know if that has gone up on appeal, but I have heard on the side that some companies are trying to not allow people to do that. As far as I am concerned, what I would probably suggest if someone is going through legal separation is basically not tell the insurance company that they are doing it. I think the only time it has ever come up is when it has actually been disclosed to the insurance company and then it becomes a problem.
Those are usually the two main reasons that people elect to do a legal separation – either for religious purposes or to keep the other party on their insurance policy.
Divorce in California – The Process to Final Judgment
The last way of terminating a marriage is the typical divorce proceeding. In California, in order to file for divorce you must be a resident of the State of California for six months and a resident of the county in which the divorce proceeding is being filed for a period of three months.
I do want to mention that for a legal separation proceeding, it does not require that you have been a resident of California for six months. That is also another reason sometimes why someone might file for a legal separation because they do not meet the six month California residence. In that situation what they would do is file a legal separation, wait until they do meet the California residency and then convert it over to a regular dissolution.
In California the termination date for the dissolution proceedings is calculated out to be six months and one day from the date of service. The date of service is the date that the other party, the non-filing party, receives their paperwork.
In most of our cases, the other party voluntarily accepts service of the documents, and they can do that by simply signing a paper that says “I have received the documents on this date.” If that is not an option, then service would have to be either done by personally serving the paperwork (that can be done by a formal process server which you would pay for, or anybody over the age of 18 years old can serve the papers as well). If you have a friend to serve the papers, we provide the documentation that they need to fill out and sign indicating the date and time that it was served and that’s perfectly acceptable to the court.
Sometimes, however, a person does not even know the whereabouts of the other party. They may have been separated for an extensive period of time, have lost track of them, and now, for whatever reason, they want to proceed with a divorce but they don’t know where the other person is living. This obviously makes personal service difficult or impossible, so there is another option for serving the paperwork and that is called serving by publication. In order to serve a party by publication, you would have to make an attempt to find them first. Typically in this situation, our office uses a very low-cost, reasonable private investigator to do a formal locate through electronic means and then they provide our office with a report that either provides no address if they were not able to locate them or does provide a possible address. If a possible address is found, then you are required to attempt personal service on the other party at that address. If they were not able to be served after that point, then you can apply to the court to serve the other party through publication. I won’t get into the specifics of the publication process in this video, but you can serve somebody through the publication process and that is valid service.
So once the party has been formally served, then there is a thirty day waiting period within which the other party has the ability to file a response or to not file a response. In most of our cases, since the parties usually are in agreement, the other party receiving the paperwork does not file a response. The reason being is that we can complete the divorce case without the other party filing a response and it will save them having to pay a court filing fee which is currently $435. We try to keep the process as economical for everybody involved, and you can complete the California divorce process through a default proceeding but still have the parties agree to all of the issues.
In most of our cases, after the thirty days has run, then the final paperwork at that point can be filed, but I do want to go over what some of the other processes that have to be completed before a Final Judgment can be submitted to the court.
One of the requirements for all California divorces is that the Petitioner always has to serve the other party with a Preliminary Disclosure. What the Preliminary Disclosure is, is a packet of paperwork that basically itemizes all of the assets, all of the debt and that person’s income. Anybody that is a Petitioner in a divorce proceeding absolutely must do this.
Now for the other party, the Respondent, the person who was served with the paperwork, they may not necessarily have to complete this same information. If the matter, the divorce proceeding, is completed without a Marital Settlement Agreement, meaning the other party does not sign an agreement – it could be because there are no assets or anything to divide. In a very short marriage, a year or so, there may be nothing to divide, nothing to address in an agreement. There are no kids, no property, nothing. As so, in those cases, the Petitioner would have to do their disclosure, but the other side does not have to do their disclosure, and there probably is no reason for them to file a Response because there are really no issues to be addressed. That is the one time where the other side does not have to file their disclosures.
If the case is going by default, but the parties agree and both parties sign a marital settlement agreement that outlines all of the issues, how property is going to be divided, whether there is going to be child support, if kids are involved, what the visitation is going to be, what the custody arrangement is going to be, addressing all of the issues. If the parties agree and they sign a Marital Settlement Agreement, then both parties have to do the preliminary disclosure documents. These documents are not filed with the court. Often people call us and say, “Oh do I have to do these disclosure documents?” and I tell them they are statutorily required and if down the road it is discovered that these were not done, that could be a basis for the Judgment being set aside. They are statutorily required. The Petitioner always has to do them, and when there is a Marital Settlement Agreement, the Respondent also has to do them. Basically the documents are exchanged between the two parties, and then as part of the Final Judgment package, there is a form that we submit to the court that says that both parties actually, in fact, did their disclosures and on what date they were done. So there is documentation that is actually filed under penalty of perjury that the documentation was properly exchanged.
Once the disclosures have been exchanged, then both parties can sign the Marital Settlement Agreement. The Marital Settlement Agreement cannot be signed until both parties have done the exchange of disclosures.
Once the Marital Settlement Agreement is signed, then the case is ready to be submitted for final Judgment processing. Typically in all of our cases, there are basically two parts of submitting the paperwork to the court. We submit the preliminary documentation which is the initiating Petition, and then when everything has been completed, the service has been done, the disclosures have been exchanged and the Marital Settlement Agreement has been signed, then we submit all of the final Judgment paperwork to the court for processing.
I hope you have found this short video helpful. We have lots of information available through our website. If you have any more questions regarding the divorce process or legal separation or an annulment, and you would like to speak to us in person, you can reach us at 800-747-2780 and press extension 0. We have experienced staff ready to take your call 7 days a week, Monday through Sunday from 7:30 am to 9:30 pm. Call us at 800-747-2780 and press Extension 0. You can also contact us through our website.
Thanks for joining me!