The Basics of an Annulment

The Basics of an Annulment

Annulment photo 1An annulment (also known as “nullity of marriage” or “nullity of domestic partnership”) is when the court deems your marriage or domestic partnership as being not legally valid. Unlike a divorce, after an annulment, it’s as if your marriage or domestic partnership never existed because it was essentially never legal.  There are some circumstances where marriage is never considered valid, and there are also quite a few legal reason why a marriage can be annulled.

Situations Where Marriage is Never Valid

  • Bigamy – When a spouse or domestic partner is already married or in a registered domestic partnership.
  • Incest – When the individuals who are married or in a registered domestic partnership are close relatives.

Other Legal Reasons for Annulment

Besides bigamy and incest, there are also quite a few legal reason why a marriage can be considered not legally valid.  They include the following: age, prior existing marriage, unsound mind, fraud, force, and physical incapacity.

Age – If the party filing for the annulment was under 18 years old at the time of the marriage or domestic partnership, they were too young to provide consent.

Unsound Mind – Either party was mentally incapable of being able to fully comprehend the nature of the marriage or domestic partnership.  This includes being severely intoxicated.

Prior Existing Marriage or Domestic Partnership – Different from bigamy, this is a situation where the marriage or domestic partnership took place after the previous spouse or partner’s whereabouts were unknown for 5 years or thought to be dead.

Fraud – Either party entered into the marriage or domestic partnership as a result of fraud. Specifically, the fraud must be something at the core of the relationship, where a person was left being deceived. (E.g., marrying for a green card, or similar situations where a person seriously misrepresents their identity or intentions).

Force – Consent by either party was obtained by force.

Physical incapacity – If either party was physically incapacitated at the time of marriage or domestic partnership. For example, if a male spouse is incapable of consummating the relationship due to impotence.

How Does the Annulment Process Work?

The first action in an annulment is the filing of a Petition for a Nullity of Marriage, accompanied with your declaration, which explains your reasons for annulment, and a Summons form. After you have filed the necessary forms, you will need to have file-stamped copies of these documents served on the other party.

Once the other party has been served, they will have 30 days within which to file their response with the court. After their response has been filed, you will need to set up a court hearing and explain your case to the judge.  The respondent will also have a chance to oppose your request if they wish to do so.

If the other party fails to file their legal response, you can then take the necessary steps to request the court enter default and seek judgment in your favor.

Statute of Limitations for Annulment

While divorces and legal separations do not have a deadline within which to file, annulments do have a statute of limitations.  The statute of limitations for annulments depends on which reason you intend to use for the annulment.

Age – The filing party who was younger than 18 at the time of marriage or domestic partnership must file for an annulment within 4 years after turning 18, but a parent or legal guardian can ask for an annulment if the individual is still under 18.

Unsound Mind – If either party was mentally incapable of being able to fully comprehend the nature of the marriage or domestic partnership, their spouse or partner can file for an annulment at any time before the death of either party.  In this case, a relative or conservator of the party of the unsound mind can also file for them.

Prior Existing Marriage or Domestic Partnership – In this situation, an annulment can be filed by either party as long as both parties to the current marriage or domestic partnership are still alive. Annulment can also be filed by the prior existing spouse or partner.

Fraud – An annulment in this case can only be filed by the deceived party, and he or she must file within 4 years of discovering the fraud.

Force – The party who was forced to give consent must file for an annulment within 4 years of getting married or registering for a domestic partnership.

Physical incapacity – The party who is not physically incapacitated must file for an annulment within 4 years of getting married or registering for a domestic partnership.

The Effects of an Annulment on Children and Paternity

Since marriages and domestic partnerships are considered invalid in the case of annulments, what happens when children are involved?

If two people have a child together and subsequently get an annulment, you must ask the judge to establish paternity.  Once paternity is established, you can also explore your options regarding child support and custody.

Legal and Financial Effects of an Annulment

Once a marriage or domestic partnership has been annulled, it’s as if the marriage or partnership did not exist because it was never valid. Each party to the annulment starts with a clean slate and goes back to their original legal status.

Unlike a divorce, an annulment does not carry the same legal and financial consequences, like the issue of community property. As a result, neither party is entitled to spousal support or survivorship benefits. In rare circumstances, there is an exception.  If either party is considered to have “putative” spouse status, they may have the right to community property and support, but this is typically very difficult to prove.

After an annulment, the court will try to restore each party to his or her original financial state. In other words, if you brought any money, property, or debt with you into the marriage or partnership, you will walk away with the same and vice versa for the other party.

Annulments can be just as complicated as a divorce, and it is recommended that you consult with an experienced family law attorney to assist you through the process.

 

 

 

 

 

Mike's Top FAQs About Divorce

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

Posted in: Divorce, Family Law, Military Divorce, Property Division

How are disability payments to a military veteran handled in a divorce proceeding?

How are disability payments to a military veteran handled in a divorce proceeding?

The federal Uniformed Services Former Spouses Protection Act (the “USFSPA”) permits divorce courts to award ex-spouses of service members part of “disposable retired pay” (the retired pay available (after necessary deductions) based on salary and years of service). How that’s divided is decided by an agreement between the parties or by the judge.

  • Under the USFSPA, military disability pay is not “disposable retired pay” and is not subject to division in divorce.
  • If a service member waives retired pay in order to get disability pay, an ex-spouse can lose out on hundreds or thousands of dollars which they might have received.

There are two kinds of military disability pay and both are excluded from the USFSPA definition of disposable retired pay:

  1. Military Disability Retired Pay: This is for those are disabled such that they can’t perform their military duties.
  2. VA Disability Compensation: This type of compensation from the Department of Veteran’s Affairs (VA) covers injuries or disabilities that occurred while on active duty, or which were made worse by active service, including service related (not necessarily combat related) mental or physical injuries.

To get these VA benefits, a service member must waive a certain amount of retired pay. If this is done, the amount waived is subtracted from the amount available to the former spouse.

Spouses can have some protections or take steps to get the maximum payments:

  1. If there is a separation or property agreement, it should include a provision stating if the service member waives any retired pay for disability pay, the service member would make a monthly payment to the non-military spouse in an amount that makes up for the lost retired pay.
  2. If there is no such agreement and the divorce issues are being litigated, the judge can be asked to retain jurisdiction to order the military member to pay spousal support in the future, or to modify an existing alimony order based on any change in the parties’ circumstances. If retired pay is reduced because of disability pay, the non-military ex-spouse could request the judge to order the military member to pay spousal support (or increase it) to make up for the retired pay that’s been lost.

 

Posted in: Divorce, Family Law, Military Divorce

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.

The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case.  This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.

A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.

There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.

Posted in: Divorce, Family Law, Military Divorce

What is a Family Care Plan for Child Custody in a Military Divorce?

What is a Family Care Plan for Child Custody in a Military Divorce?

As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.

A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”

A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.

Posted in: Divorce, Family Law, Military Divorce

Can parents create their own agreement for child support?

Can parents create their own agreement for child support?

Yes, parents can stipulate their own agreement regarding child support, but it must be approved by the court. In order for the court to consider reviewing the agreement, it must meet the following guidelines:

  1. There must already be an open court case between the parents.
  2. The agreement must contain the following information:
    1. Each parent is fully aware of his/her child support rights.
    2. Each parent is aware of what the guideline child support amount would be.
    3. Neither parent is feeling pressured or forced to agree on the stated amount.
    4. Neither parent is receiving public assistance or has applied for public assistance.
    5. Both parents think that the agreed upon amount is in the best interest of the child.

After you have reached an agreement with the other parent and have created a stipulation consistent with these guidelines, you will both need to sign the document. If you do not have attorneys, your signatures will need to be notarized. You can then submit the stipulation for the court’s review. If you have a court date scheduled, you can bring the stipulation with you to the hearing for the judge’s review and signature, or you can go to the courthouse and ask to speak with a family law clerk to get it approved and signed.

After you have received the judge’s signature, you’ll need to file the original with the court clerk, and serve a file-stamped copy of the order on the other parent (or their attorney, if they have one.)

Posted in: Child Support, Family Law