Alternatives to Divorce in California

Annulment or Separation May Be an Alternative to Divorce

If you and your spouse don't want a divorce, but don't want to continue living together either, there are a couple of options that may be available to you depending on your circumstances, such as a Legal Separation or a Nullity (an "Annulment").

In most states including California , a legal separation must be filed by the "innocent spouse" (for instance, your spouse moved out and you did nothing to cause it). According to Ed Sherman -- the author of How To Do Your Own Divorce and How To Do Your Own Divorce in California (both Nolo Press) and co-founder of "Divorce Helpline" -- there are a few situations where a legal separation works better than divorce. Examples include: "...where sizable Social Security benefits, Veterans' benefits, retirement, or other benefits may be lost if there is a divorce, or where a spouse with an illness or disability may be able to stay on the employed spouse's health insurance (call the plan to see if they allow this)," according to Sherman.

A legal separation is used to divide the property and to provide for child and/or spousal support in cases where the husband and wife live separately, but remain married. To be legally separated, both parties must intend that the marriage be over and must act consistent with that intent. In most cases, it's a stepping-stone to divorce; sometimes, however, it's a wake-up call to a complacent spouse.

California also makes provisions for Nullity, which invalidates the marriage. However, nullity is fairly difficult to prove. If you don't want to get divorced -- for religious reasons, for example -- a legal separation is much easier to obtain than a nullity.

The circumstances under which you can file for a nullity are limited -- and irreconcilable differences are not one of them. This is a very complex area, and you'll definitely need a lawyer to help you prove your case. Generally speaking, the most common grounds for an annulment are:

• One party lacked the capacity to consent to the marriage. For instance, one party lacked the mental capacity to consent, was so ill that he or she couldn't consent, had been plied with alcohol or drugs, or was forced or fraudulently induced to enter the marriage.
• One party was a minor (less than 18 years old) and the marriage occurred without parental consent and a court order granting permission to marry.
• Bigamy. One party was still legally married to someone else when the marriage took place.
• Consanguinity. Marriage is prohibited because of blood relationship (brother and sister, father and daughter, aunt and nephew, uncle and niece).
• One party is guilty of fraud. For instance, one party married the other in order to inherit the other's property, and had no intention of ever living together as spouses.

You must be able to prove one or more of these grounds with evidence. The nullity (annulment) procedure is usually complicated, often requires expert testimony, and should not be considered without consulting a lawyer first.

But there are reasons for trying to have your marriage annulled that go beyond religious or moral concerns. "It depends on your perspective," Hunter explains. "An annulment makes it as though the marriage never happened, so you have no right to property or support from the other person. It's general civil contract law. I don't think people know the distinction, and that's why they seek an annulment. It's more of a philosophical than a financial thing to them."

As you take your first steps towards legal separation or divorce, it's important to remember that each divorce is unique and there are many approaches to divorce available in the judicial system. With careful consideration, you're certain to find the professionals and the approach that are right for you.

Divorce