Nullify, Dissolve, or Legally Separate? Understanding California's Divorce and Annulment Laws

(Written for a Justia client, March 2013. Used with permission.)

When married couples and domestic partners in California seek a formal end to their relationship, the most common procedure is divorce, legally described as a dissolution of marriage or domestic partnership. California law allows alternatives to jumping head-first into a divorce. In relatively rare instances, couples may be able to annul their marriage, which wipes the slate clean in a legal sense. Couples can legally separate, either to make gradual changes to their finances, or to conduct a "trial separation" before divorce. Some couples choose to remain legally separated but never divorce, while other reconcile after a period of separation.

Grounds for Divorce or Legal Separation

Divorce and legal separation follow the same procedural rules. A spouse seeking a divorce or legal separation must petition a court, and must first state grounds for the divorce or legal separation. California is a "no fault" state, meaning that a spouse does not need to show specific wrongdoing by the other spouse in order to obtain a divorce or legal separation. The two grounds for divorce in California are "irreconcilable differences" and "incurable insanity." Irreconcilable differences, defined as reasons identified by the court that show that the marriage should not be continued, is by far the more common ground cited in divorces and legal separations. Incurable insanity requires medical or psychiatric evidence showing that the spouse was insane at the time the other spouse filed for divorce or legal separation, and continued to be insane up to the present.

Legal Separation

A legal separation is a non-final divorce. A spouse can seek adjudication of the issues typically addressed in a divorce, including division of property, child custody and child support, and spousal maintenance. A court may issues orders regarding all of these issues, but stops short of granting a divorce.


Married couples that do not qualify for summary divorce or annulment (discussed below) and do not wish to continue in a legal separation must proceed to the full divorce process. One spouse may proceed with pursuing a divorce even if the other spouse does not agree. If the couple has not already done a legal separation, the court must consider all of the issues described above and grant the divorce. The parties may choose to negotiate and settle the matter between themselves and their attorneys, or they may use a mediator or other form of alternative dispute resolution. In the absence of an agreed settlement, the parties must go to trial.

Summary Divorce

Spouses and domestic partners who meet certain criteria may use the expedited process of summary divorce. This applies to couples that:

  • Have been married or registered less than five years;
  • Have no children born or adopted
  • Do not own or rent any real property other than a rented residence
  • Have $6,000 or less in community debt;
  • Have less than $38,000 in community property;
  • Have less than $38,000 each in separate property;
  • Agree not to seek spousal support from each other; and
  • Enter into an agreed division of property.


California law defines certain marriages as “void,” such as marriages between close relatives and a marriage commenced when one spouse is still married to someone else. A person must petition a court to declare the marriage void.

Other marriages are deemed “voidable,” and the procedure to end such a marriage is commonly known as “annulment.” Voidable marriages may include:

  • Spouse was under the age of eighteen at the time of marriage and did not have parental consent or a court order;
  • Spouse has been missing for at least five years and is believed to be deceased;
  • Spouse was of unsound mind at the time of the marriage;
  • Spouse agreed to marry based on fraud or duress;
  • Spouse was and continues to be unable to consummate the marriage (“physically incapable of entering into the marriage state.”)

Each ground for annulment must be brought within a specific period of time after entering into the marriage, and many of the grounds are not available if the spouses cohabitate.

© David C. Wells 2014