San Diego Legal Separation & Annulment Lawyer
Legal separation matters are far less common than divorce cases. However, there are treated almost identically to divorce cases by the Family Courts in San Diego and should be taken very seriously. Legal separation cases could end up having a resounding effect on a person’s life, just like divorce. It is important to understand the process of legal separation and the differences between divorce and legal separation. Our San Diego legal separation and annulment attorneys at Wilkinson & Finkbeiner, LLP are here to help. Contact a San Diego family law attorney today for more information and professional legal assistance with your case.
What are the grounds for legal separation? Are the grounds different for legal separation than divorce?
There are only two grounds for legal separation in California, and they are the same as the grounds for dissolution of marriage (divorce). The grounds for legal separation are set forth in Family Code 2310 and are:
- Irreconcilable differences that have caused an irreparable breakdown in the marriage; or
- Incurable insanity
What is the difference between legal separation and divorce?
There are just a few differences between divorce and legal separation. Some of these differences are outlined below:
- There is no residency requirement to file for legal separation (more on this below)
- Legal separation concludes when the court enters a judgment for legal separation as opposed to divorce, which likely has legal significance
- There is no six month waiting period to obtain a legal separation judgment
- Upon entry of a legal separation judgment, parties’ lives are financially severed but they remain married to each other
Why would someone want to seek a legal separation as opposed to a divorce?
There are a variety of reasons that a person may want to seek legal separation as opposed to divorce. Most commonly, persons seek legal separation for religious purposes. Specifically, their religion looks down on divorce and therefore they choose to “legally separate” instead. Another reason parties choose to legally separate is so that they can remain eligible to receive some federal benefits, like Social Security. Federal law mandates that parties that are married for 10 or more years are eligible to receive a portion of the other spouse’s Social Security benefits, for example. Also, if parties legally separate but don’t divorce, they are able to file joint tax returns. Finally, parties that are married for a long period of time may be eligible to receive certain military benefits, such as survivor benefits and military retirement.
What is the process to obtain a legal separation – is it different than divorce?
The process to obtain a legal separation judgment in San Diego is nearly the same as dissolution of marriage. First, a petition is filed for legal separation, which incidentally is the same form used for divorce and nullity actions. After the case is filed, a case number and judicial officer are both assigned to the case; the papers (including a Summons) must be served on the responding party. The respondent then has 30 days to file a response or risk being “defaulted” in the case (i.e. where the other party moves forward in the case without them.) Next, parties are required to exchange Preliminary Declarations of Disclosure (i.e. financial statements) with each other and if either party wishes to commence discovery, they may do so. Either party may wish to file for temporary orders (by filing a Request for Order) during the pendency of the case. The orders that the court can make on a temporary basis are the same as in divorce. Next, the parties will attend various Case Management hearings, such as a “Family Resolution Conference” and will attempt to resolve their case entirely by participating in a Mandatory Settlement Conference. A case is resolved when the parties reach a full, written agreement, or the court holds a trial on the legal separation issues remaining (which may include child custody and visitation, child support, spousal support, division of property and debts, whether there are grounds for a legal separation judgment, and so forth.)
What if one spouse wants legal separation and one spouse wants divorce?
In the event one spouse files for legal separation and the other party responds by requesting a divorce, the court will grant the divorce (dissolution of marriage) rather than legal separation at the end of the case. This is because in California, married persons are entitled as a matter of law to obtain a divorce if they want one based on irreconcilable differences, even if the other party objects. Our San Diego divorce lawyers have experience handling both legal separation and complex divorce cases.
Is there a residency requirement for legal separation like there is for dissolution of marriage?
No. California law allows for the filing of a legal separation even though a party may not meet the residency requirement. To file for divorce in San Diego, California, either party must have lived as a resident in San Diego County for at least 3 months and within California for at least 6 months immediately preceding the filing of the petition.
Can I file for legal separation even if I don’t meet the residency requirement, and then get a divorce later?
Yes. Typically, we will “plead in the alternative” for divorce and legal separation if a party does not meet the residency requirement for filing dissolution of marriage. The court can “tack” on the time that a person lives in California while the legal separation case is pending in order to later grant the divorce. Alternatively, if parties obtain a legal separation judgment in San Diego, either party may later file a petition for dissolution of marriage and that will be called a “status only” case, because all other issues will have been resolved in the legal separation case. The cases will merge together, called “consolidation.”
ANNULMENT (NULLITY) CASES IN SAN DIEGO
Annulment cases (also called “nullity” cases) in San Diego County are also somewhat rare. In these cases, the trial court will enter judgment that “voids” the marriage, which means that the marriage never existed. As you might expect, these cases hold significant legal consequences and should not be taken lightly. If you believe you have grounds for a nullity case, or are the respondent in a nullity case, contact our office today for a private consultation.
Do I have a right to get an annulment like I have the right to get a divorce?
No. Parties seeking an annulment judgment do not have a “right” to get an annulment. Conversely, a party seeking a divorce has a right to obtain a divorce based simply on irreconcilable differences. To obtain a nullity judgment that thereby voids the marriage, the party seeking the annulment must prove one of the grounds for the annulment.
What if one party asks for a divorce and the other party requests an annulment?
In these cases, the court will enter an order in favor of the nullity rather than a divorce, so long as the grounds for the annulment are met. The reason for this is that the annulment preempts the divorce by adjudicating that the marriage never existed in the first place. If the marriage never existed, there is no reason to have a divorce.
What are the grounds for obtaining an annulment in San Diego?
The grounds for obtaining a nullity judgment in California are set forth in Part 2 of Division 6 of the Family Code. These grounds include:
- Incestuous marriages (Family Code 2200) – this is where a family member marries another family member. These marriages are automatically “void,” meaning they are automatically invalid marriages rather than “voidable,” which means that a party must seek to actually try and void the marriage but it is not automatically so.
- Bigamous marriages (Family Code 2201) – this is where a party is already married to someone else at the time of their marriage to the new spouse. Bigamous marriages are also “void” rather than “voidable.”
- Lack of capacity (Family Code 2210(a)) – this means that a person was too young to marry (and didn’t have parental consent or was declared emancipated by a court) or that the person lacked the mental wherewithal to understand the legal significance of marriage.
- Missing first spouse (Family Code 2210(b)) – in cases where a party believed their first spouse was deceased or because they had been missing for at least 5 years, but that person later is still alive, the spouse may seek to annul the first marriage.
- Unsound mind (Family Code 2210(c)).
- Fraud (Family Code 2210(d)).
- Physical incapacity (Family Code 2210(e) – this means that a party to the marriage was “physically incapable of entering into the marriage state” and continues to be incurable. An example of this is when a spouse is physically incapable of having sexual intercourse and the marriage is not consummated.
What is a putative spouse?
A “putative” spouse may be declared by the court where the party believed in good faith that a marriage existed and a marriage certificate was still obtained. In putative spouse situations, the court declares that the putative spouse is still allowed to receive their one-half share of what would be community property, and receive spousal support. The court can also make custody orders just like in a divorce case (see Family Code 2253).
Are there statutory limits for obtaining an annulment even if grounds exist?
Yes. Here are some examples:
- If parties are too young to marry but later reach the age of majority and continue to live together as husband and wife, the court will not annul the marriage unless an action is brought within 4 years of the date of marriage.
- If the marriage was obtained by fraud, the defrauded party must petition to void the marriage within four years of discovering the fraud.
- If a party was physically incapable of entering into the marital state, a petition to void the marriage must be filed by the “injured” party within four years of the date of marriage.
For more information about legal separation or annulments in San Diego, contact the attorneys at Wilkinson & Finkbeiner, LLP today for a consultation. If your case involves children, our San Diego child custody lawyers and child support lawyers have the experience and skill to handle your divorce and legal separation. Call (619) 361-7992 to schedule a consultation today or contact us online and find out how we can help.