Our Orange County Divorce Lawyers Explain Legal Separation and Annulments

You’ve decided your marriage is not working. What next? What remedy should you pursue to unwind your marriage? There are many confusing terms swirling around. Should you get a divorce, is that the same thing as a dissolution of marriage? What is a legal separation, and should you think about that option? You’ve heard of a nullification of marriage. Is it possible to have your marriage nullified and act like it never happened in the first place? Our Irvine and Orange County divorce lawyers explain the different approaches to ending a marriage and can help you pursue the option that’s best for you.

What is Considered a Dissolution of Marriage in California?

In California for most cases, the appropriate remedy to terminate a marital relationship is a “dissolution of marriage.” A dissolution of marriage is what most people mean when they say “divorce.” There are two grounds for a dissolution of marriage:

1.  irreconcilable differences, and
2. “permanent legal incapacity to make decisions.”

While the judge may be amused by the retelling of your spouses’ inability to choose a decent restaurant for date night, a claim that one spouse lacks the capacity to make decisions will require competent medical and psychiatric testimony to this fact. In contrast, no evidence is needed to prove that there are “irreconcilable differences” between the spouses. As such, nearly all dissolutions are pursued on the basis on irreconcilable differences. A dissolution of marriage terminates the parties’ marital status and returns the parties to the status of single people. A judgment dissolving the marriage will resolve all issues involved in the marriage including the division of the marital estate, an award of child support and spousal support, where applicable.

What Constitutes a Legal Separation?

A legal separation is an alternative to a dissolution of marriage. A legal separation similarly resolves all financial aspects of the marriage. Like a dissolution of marriage, the parties financially separate and divide the marital estate. Child and spousal support will be ordered, where applicable.

A judgment for legal separation, however, does not terminate the parties’ marital status. The parties will technically remain “married,” but in name only. A legal separation can only be pursued if both parties agree to a legal separation. If one party wants to pursue a legal separation and one party wants to pursue a dissolution of marriage, the remedy will be a dissolution of marriage. Individuals usually pursue a legal separation for religious or personal reasons when they want to divide their economic interests and property but retain the status of “married” persons. However, if either party desires to remarry in the future, the parties will need to commence a separate dissolution of marriage proceeding to then terminate their marital status.

A Divorce Lawyer from Our Firm Can Also Help You if You Believe the Marriage is Invalid

A petition for a judgment of nullity should be considered only when the validity of the underlying marriage is in doubt. A nullity proceeding claims that no valid marriage occurred due to circumstances existing at the time of the marriage. A marriage may be invalid because of a failure to formalize the marriage through a failure meet the legal requirements of marriage, such as a failure to register the marriage license or a failure to solemnize the marriage. The marriage may also be invalid at inception due to the illegality of the marriage for reasons such as incest, bigamy, fraud or force, incapacity to enter the marriage, or that an underage party did not obtain the proper court order to marry.

For the vast majority of cases, while parties may wish to nullify the marriage, pretend it never happened and “wipe the slate clean,” nullity is not an appropriate option to dissolve their marriage. Most marriages were valid marriages at inception and need to be dissolved through a legal separation or dissolution of marriage. However, in certain cases, a nullity action is the appropriate remedy to dissolve the marital relationship.

When considering how to end your marital relationship, it is important to know your options. If you would like to discuss whether a dissolution of marriage, legal separation, or nullity action is the proper choice for you, feel free to contact our office at (949) 474-0800 to speak with our top Irvine and Orange County divorce lawyers.

Common Questions About Alternatives to Divorce in California

What are the legal alternatives to divorce in California?

Three, and they do different things. Legal separation divides property and sets support and custody while leaving the marriage intact, and it requires both spouses to agree. Nullity, commonly called annulment, is a declaration that a valid marriage never existed, available only on specific statutory grounds. A postnuptial agreement leaves the marriage and its status alone but changes how the spouses’ property and income will be characterized going forward. An informal separation with no filing at all is also a choice, though it leaves the financial questions unresolved and the community estate still accruing.

When is an annulment available instead of a divorce?

Only on specific grounds, and it is far less commonly available than people assume. A marriage is void where it is incestuous or bigamous. It is voidable, meaning it can be nullified on request within statutory time limits, in defined circumstances including that a party was underage, that a prior spouse was believed dead, that a party lacked the capacity to consent, that consent was obtained by fraud going to the essence of the marriage, that consent was obtained by force, or that a party was physically incapable of entering the marriage. Unhappiness, a short marriage, or regret is not a ground.

Does an informal separation stop the community estate from growing?

It can, but only if the date of separation is established, and that is a factual question decided on evidence rather than by moving out. California treats the date of separation as when a complete and final break in the marital relationship occurred, requiring both that a spouse expressed the intent to end the marriage and that their conduct was consistent with it. Until that date, earnings and acquisitions remain community and debts remain community obligations. Where income is substantial, an ambiguous separation date is expensive, which is why documenting the break matters even when no case is filed.

Can spouses settle their finances without ending the marriage?

Yes, through a postnuptial agreement or a judgment of legal separation, and the two differ in an important way. A postnuptial agreement is a contract between the spouses characterizing property and income going forward, and it is subject to the fiduciary duties spouses owe each other, so full disclosure and independent counsel matter to its enforceability. A judgment of legal separation is a court order that actually divides the existing estate and sets support. Choosing between them turns on whether the goal is to divide what exists now or to change the rules for what comes next.

About the Firm

Seastrom Tuttle Murphy Dockstader is a family law firm in Irvine representing clients throughout Orange County, and in Los Angeles County. The firm practices family law exclusively. Its attorneys include Fellows of the American Academy of Matrimonial Lawyers and of the International Academy of Family Lawyers, and attorneys certified as specialists in family law by the State Bar of California Board of Legal Specialization. Call 949.474.0800 to discuss the options available in your circumstances.