How to Choose the Right Way to Legally End Your Relationship
Photo by Olya Kobruseva
There is more than one way to end a relationship legally using the Family Code. This post briefly discusses three ways: 1) judgment of dissolution of marriage, 2) judgment of nullity of marriage and 3) legal separation.
A marriage is legally dissolved only by (a) a party’s death; (b) a judgment of marriage dissolution; or (c) a judgment of nullity of marriage. (Family Code § 310.) Another basis is resolving the marital rights and financial responsibilities without dissolving the marriage in a proceeding for legal separation. (See generally, Family Code § 2010 (court jurisdiction).)
A dissolution action terminates a valid marriage on grounds arising after the marriage (Family Code § 2310.) A nullity case, on the other hand, operates on the grounds that for reasons existing at the time of the marriage, no valid marriage ever occurred – the marriage was either void or voidable (Family Code § 2200, et seq.). In other words, a dissolution terminates marital status; a nullity determines whether marital status ever existed.
What causes a marriage to be void or voidable? There might be problems with the statutory formalization procedures (ordinarily, license, solemnization and authentication; Family Code § 306) or because of other problems that make the marriage void or voidable (incestuous, bigamous, induced by fraud or force, etc. ; Family Code §§ 2200, 2201, 2210.)
It should be noted that voidable marriages are valid unless and until adjudged a nullity is raised. A party can pursue a dissolution of marriage unless the other side party raises the issue of nullity.
A party should think hard about whether to pursue a nullity. Litigating a dissolution action can be as simple as alleging that there are irreconcilable differences between the parties. The burdens of proof for each type of nullity and concomitant costs involved can be substantially greater when litigating an annulment. There might also be statutes if limitation which provide the outer limits of when a nullity can be litigated. (Family Code § 2211.)
Dissolution actions are “no-fault.” There is a residency requirement (6 months living in California and 3 months in the county of filing) which don’t exist for the other legal forms of severing a relationship. Principles of community property govern the action and bring to bear the fiduciary duties of the spouses to each other. There is a requirement to exchange financial disclosures. The earliest a party can be deemed single is 6 months from the date the Respondent was served with the initial pleadings.
Turning to legal separations, a judgment of legal separation does not terminate marital status. It is an alternative to dissolution and is popular where for religious or other personal reasons the petitioner does not want to terminate marital status. In other respects, a legal separation proceeding is similar to a dissolution action: i.e., a judgment of legal separation settles support, custody/visitation and community property rights and obligations.
Have questions about which course of action to take to dissolve your relationship? Schedule a free initial consultation with the Law Offices of Jane Migachyov NOW.