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Are you a candidate for termination via nullity? Perhaps, but this remedy should only be sought where the validity of the marriage is in doubt. The difference between nullity of a marriage and martial dissolution is that they are based on opposing assumptions.

A marital dissolution action is used to terminate an otherwise valid marriage on grounds that arise after marriage. On the other hand, a nullity is pursued because the petitioner (the filing party) believes that at the time of the marriage, no valid marriage ever occurred.

That is, a nullity action asks a question: "Was this marriage a valid marriage from the inception?" A court must inquire as to whether the marriage was valid from day one.

that they are based on opposing assumptions.

A marital dissolution action is used to terminate an otherwise valid marriage on grounds that arise after marriage. On the other hand, a nullity is pursued because the petitioner (the filing party) believes that at the time of the marriage, no valid marriage ever occurred.

That is, a nullity action asks a question: "Was this marriage a valid marriage from the inception?" A court must inquire as to whether the marriage was valid from day one. So is your marriage valid? A marriage may be invalid from the beginning because of irregularities in the statutory formalization procedures, which are ordinarily obtaining the license, solemnization and authentication.

However, it also may be void or voidable because of other legal imperfections including but not limited to incest, bigamy, inducement by fraud or force, or where a party or both parties are under the age of consent at the time of the marriage.

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Even if a nullity is an option keep in mind that there are some disadvantages of a nullity proceeding, including but not limited to the following. Proving grounds for a judgment of nullity are likely to be more difficult and costly to prove.

The party seeking a judgment of nullity may also have to overcome statutes of limitations hurdles. Fault play no role in a marriage dissolution proceeding. In a nullity proceeding, however, issues of "innocence" or "fault" are very important for questions of support and an attorney fees and costs award, as well as determining marital (quasi-marital) property rights.

Parties to an invalid marriage do not have "community property" rights. But property acquired during the void or voidable marriage, which would have been community property but for the impediment to a valid marriage, may be deemed "quasi-marital property" and divided in a nullity proceeding as if it were community property.

This only happens where "putative spouse" status is established (that this spouse has a good faith belief that the marriage is valid).

Even though there are clear disadvantages of nullity, there are many benefits of a nullity proceeding as well including but not limited to the following.

The six-months/three-months residence requirement for a marriage dissolution judgment isn’t required when seeking a nullity. And the six-month “waiting period” prior to a dissolution judgment terminating marital status does not apply nullity cases. A nullity judgment ends the marriage immediately.

If you can rove that fraudulent inducement to marry it is feasible that any interspousal property transaction would be set aside. For example if you were to execute a deed transferring title to your separately-owned real property into you and your spouses name, a court could undo this transaction because it was based on the same fraud that caused you enter into the marriage.

You can defeat claims for community property rights as there would be no community property at issue upon a judgment of nullity. However, property is typically treated as quasi-community property unless you can prove that your spouse does not have “putative spouse” status. As only “putative spouses” have quasi-community property rights.

A judgment of nullity determines that no legal contract of marriage ever came into being, it relates back to the date of the purported marriage and erases all of the consequences of any mistaken reliance on there being such a relationship. This “relation-back” effect may effectively restore the client to certain preexisting rights that had been terminated by the supposed marriage.

No support or attorney fees and costs are awardable in a nullity proceeding to a party lacking “putative spouse” status or who is otherwise tainted by fraud or wrongdoing in inducing or entering into the marriage. Lastly, a party to a void or voidable marriage may be compelled by religious beliefs to seek a judgment of nullity over a typical divorce.

To determine whether nullity is viable option for your case, please schedule a free, confidential consultation today.

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