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Annulment vs. Divorce In California: What You Need To Know

October 27, 2022September 26, 2022 by wpadmin

Annulment and divorce laws differ from state to state. The State of California has unique guidelines you must follow and specific criteria to meet should you choose to file for a divorce or an annulment.

Opting for an annulment instead of a divorce in California has an entirely different effect on how the relationship is categorized and possible future benefits or consequences.

Suppose you live in California and wonder what the difference is between an annulment and a divorce. This article will outline the fundamental differences and what you need to know.

The Difference Between An Annulment And A Divorce In California

The most common way to end a marriage is through a divorce, defined as the legal dissolution of a marriage. Once a divorce is complete, both people are considered legally single and eligible to remarry legally.

When you go through a divorce, the previous marriage remains on record as having existed. The judge declares that the marriage is dissolved due to irreconcilable differences or one party’s legal incapacity to make decisions.

However, an annulment ultimately states that the former marriage was never permitted in the first place. An annulment completely invalidates the wedding, and the courts will remove all records and evidence of the marriage, which means that the court decrees that the marriage never even happened.

What Is An Annulment In California?

The annulment process in California is very similar to that of a divorce. However, it varies significantly in the final decree. To obtain an annulment in California, one party must first file a Petition for Annulment with the court in the appropriate county. It is essential to file within the applicable timeframe. An annulment in California requires the:

Spouses marriage
Reasons for the annulment
Proposes terms for the annulment

Once the Petition for Annulment has been filed, the filing spouse has 30 days from the filing date to notify the other party of the petition and have them formally served. The other spouse is then allowed 30 days from the time of receipt to file a response or answer to the petition.

Reasons And Statute Of Limitations For Annulment In California

There are several possible reasons why California would allow judges to grant an annulment request, and also a statute of limitations for each circumstance, which includes:

They Were Already Married. One party committed bigamy and entered a second marriage while the first marriage was still intact, and you must file for the annulment before the first spouse’s death.
Underage Marriage. One party was younger than 18 when the marriage occurred, and you must file for the annulment within four years of turning 18.
Forced Marriage. One party was forced to marry against their wishes, and you must file for the annulment within the first four years of marriage.
Fraudulent Marriage. One party committed fraud to influence the other person to marry or to get consent for marriage. An example will be if one party marries the other person only to stay in the United States while lying and claiming the traditional reasons for getting married. You must file for the annulment four years from the date that you discover the fraud.
Unsound Mind. One or both persons could not consent to the marriage because they are of “unsound mind” at the time of marriage. An example of this will be if someone marries a severely mentally incapacitated person who cannot consent or two people get married while intoxicated. Either party may file for an annulment any time before the death of one person.
Physical Incapacity. One or both persons have an incurable physical illness, disease, or incapacitation that will not be resolved soon. If you file an annulment due to your partner’s inability to maintain sexual relations because of physical incapacity, you must do so within the first four years of marriage.

Proof For An Annulment

To obtain an annulment, you must prove to the judge that at least one of the above situations applies. You must also prove that you filed for the annulment within the time allowed for your situation. The requirement of providing proof as a part of the request for the annulment is vastly different from divorce in California, which can be granted on grounds as simple as irreconcilable differences.

Divorce vs. Annulment: Pros and Cons

Annulments have different consequences than traditional divorce. Divorced spouses have specific rights that those who have their marriage annulled will not have, as an annulment concludes that a marriage was never valid from the beginning.

Examples of this include spousal maintenance, pension benefits, community property rights, and other legal rights of divorced spouses that are not generally applicable with an annulment of a marriage. Depending upon your situation, obtaining an annulment could be an advantage rather than a disadvantage.

An annulment can also be a more cost-effective way to end a marriage as there aren’t as many legal issues that need resolution as in a divorce. However, if proving the grounds on which you seek an annulment is challenging, or your spouse may contest it, litigation costs and investigator fees for expert witness expenses can quickly add up.

Sometimes getting a divorce is more straightforward as no proof of fault is required. It can be based on irreconcilable differences making it a more economical choice than going through the annulment process.

The annulment process also does not have the exact six-month minimum residency requirement or waiting period you must meet to get a divorce in California. An annulment in California is effective immediately.

Hiring an attorney experienced in California divorce laws to determine your best course of action is essential to save you time, money, and stress.

Azemika & Azemika Law Is Here To Help

At Azemika & Azemika Law, our law firm’s practice is devoted exclusively to family law. We are experts in handling cases involving divorce, annulment, child custody and visitation, division of property, and other family law-related situations, successfully supporting our clients in Bakersfield, California. Contact us today to learn how we can help you.

Can I Use Text Messages In My California Divorce?

October 27, 2022September 19, 2022 by wpadmin

If you are going through a divorce, you may be wondering what types of evidence you can use that may include text messages, DMs (direct messages through social media), and emails which can potentially provide evidence in court.

These days, communication often happens through text messages which is generally an easy way to talk with anyone, no matter their location, including your spouse.

Text messages are commonly used as evidence during California divorce proceedings, although not all text messages are considered equal. This article will discuss when and what types of text messages can be utilized as evidence in a California divorce.

Relevant Text Messages Between Spouses

California is a no-fault divorce state, so neither side is required to prove that the other person is the one responsible for the ending of the marriage. However, text messages between spouses can be submitted as evidence in a California divorce case. Remember, however, that your spouse has an equal weight to produce all your text messages.

Text messages can sometimes show the ugly side of a marital relationship, especially when the conversation becomes argumentative and when one or both parties send threatening text messages. Text messages can also prove that your spouse is engaged in an extramarital relationship or criminal activity.

Your divorce attorney can help determine whether or not your text messages are relevant, as you don’t want to waste the time of the court just because you are angry. Here are some valid reasons to submit text messages during a divorce and provide evidence that your spouse:

Is committing domestic violence, which includes verbal, emotional, mental, or physical abuse
Is neglecting childcare
Has a substance or alcohol abuse problem
Is harassing or threatening you
Is abusing or neglecting the children
Has chosen social engagements, work, or other personal pursuit pursuits over the responsibility of their child-rearing responsibilities
Is trying to hide marital assets

These issues and more can influence child custody, restraining orders, and the separation of assets. Your family law expert in Kern County, California, can help you decide if the content of the text messages is relevant to your case.

Relevant Text Messages Between Your Spouse and Third Parties

Should you have any reason to believe that your spouse has been sending messages to a third party that may be relevant to your divorce, you may also be able to obtain copies of these text messages through the formal discovery process.

For example, suppose your spouse is sending messages to a business partner that show incriminating evidence or having an extramarital affair. In that case, you may need to subpoena the person who is sending or receiving the text messages from your spouse to use them in the divorce proceedings.

However, make sure you avoid trying to access text messages by logging into your spouse’s phone or using any other snooping methods, as you could harm your divorce case. Make sure you discuss your legal options with an experienced family law attorney in Bakersfield, California.

Authentication Of Text Messages

All text messages, DMs, emails, and other electronic messages used as evidence in a California divorce court will be required to be authenticated, and you must prove that your spouse sent them.

The California Evidence Code also determines ways you can authenticate electronic communications. For a text message to be authenticated, it means that:

The other person must admit to sending the message
A witness must testify that they saw the message being created
A reply authentication must be shown, which happens when a reply message is sent in response to the original message
If a message references something that only the other person would know about or understand

Authentication is necessary to determine if you can utilize text messages in a California divorce if it verifies them as legitimate evidence. Your divorce attorney will be able to tell you how and if you can authenticate the text messages to use them in a California divorce.

To Get The Expert Advice And Help You Need, Contact Azemika & Azemika Law

At Azemika & Azemika, our law firm’s practice is exclusively devoted to family law. Our expert attorneys are here to help clients in Kern County with issues related to family law, including divorce, child custody and support, paternity, and more.

Every case is unique and navigating a divorce is often complex and emotional. We are here to help you and your family using our experience, skill, and expertise as attorneys specializing in family law. Contact us today for a consultation to find out how you can protect yourself and your loved ones during this challenging time.

How Is Retirement Split In A Divorce In California?

October 27, 2022September 12, 2022 by wpadmin

Divorce is typically a complex process, especially if you and your spouse were married for a more extended period. In many divorces, spousal pensions and retirement accounts often have the highest-value assets.

Conversations and disputes around retirement accounts can become heated and complex during a divorce. Often they are subject to special requirements and considerations, and it is essential to understand how to protect your assets and your future.

This article will discuss different retirement accounts and give you a basic understanding of how retirement plans are distributed in a California divorce. Keep in mind that it is in your best interest to hire an expert Kern County divorce attorney to ensure that your retirement assets are protected.

Most Retirement Funds Are Included In Marital Property

California considers any income either party earns during the marriage to be shared marital property. Defined contribution retirement plans such as 401(K), 403(b), or 457 accounts, as well as SEPs or IRAs, are counted as marital property as these accounts are funded by income that is considered marital property.

Suppose one or both of the divorcing parties opened a retirement account before the marriage. In that case, they might be able to claim they are premarital deposits to the account as a separate, non-marital party to avoid dividing the income with a former spouse. Laws differ from state to state, and California law also treats any interest earned on premarital contributions to a retirement plan as separate property.

Defined Contribution Plans In A California Divorce

Federal law governs defined contribution plans, including the payments from these plans, which are divided In the event of a divorce. Divorcing couples with a defined contribution plan included in their divorce decree will need to issue a Qualified Domestic Relations Order (QDRO) in addition to the divorce decree. The QDRO Is necessary to authorize the plan administrator to issue payments to the non-employee ex-spouse and is a particular court order that is required regardless of whether your divorce is amicable.

In addition to permitting the plan administrators to distribute money to the account holder’s ex-spouse, a QDRO also allows the ex-spouse to withdraw money from the account and deposit the funds into other retirement accounts without incurring any of the penalties that are usually charged with early withdrawals from retirement funds.

QRDOs only apply to retirement plans covered by a federal law called ERISA and are not effective for distributing assets from non-qualified plans, including stock options, excess benefit plans, and supplemental executive reimbursement plans.

Certain types of retirement plans that need a QDRO will also require “joining” the plan as a party to your divorce. An experienced attorney can help you with this complex process. Examples of plans that require this “joiner” to obtain a QDRO include:

Federal government plans such as Civil Service Retirement System (CSRS), Foreign Service Pension System (FSPS), and Federal Employees Retirement System plans.
State government plans such as California State Teachers’ Retirement System (CalSTRS), California Public Employees’ Retirement System (CalPERS0, and University of California Retirement System (UCRS) plans.

Qualified plans covered by ERISA include:

Private company pensions
401(k)
Deferred compensation plans
Employee stock ownership plans
Profit-sharing plans
Severance plans

It is critical to understand that without a QDRO in place, the administrator of the plan will not be allowed to distribute any funds to the non-employee ex-spouse. Also, ensure you learn how to protect your finances in a California divorce.

Various Other Retirement Benefits

SEPs and IRAs do not need to have a QDRO for the court’s division of assets. However, the divorce decree must contain language that states explicitly that any withdrawals and transfers by the ex-spouse are under section 408(d)(6) of the Internal Revenue Code and, therefore, tax-free to avoid paying early withdrawal penalties and income tax.

Division Of Retirement Plans

There are several factors to determine who gets what regarding retirement plans. Sometimes the answers are not as straightforward as they may seem.

Essential questions include:

What is the present value of the retirement plan?
Is the entire amount subject to distribution as community property? If not, is a portion considered community property while the remainder is deemed separate property?
Would one spouse give up their share in the retirement plan in exchange for other community property assets? Is that an intelligent choice based on the long-term projections of both the retirement plan and the support?
Are one or both of you military officers? Special considerations under the Uniformed Services Former Spouses Protection Act (USFSPA) apply to military pensions.

While you may be tempted to just split everything quickly in an attempt to finalize your divorce, it is critical to understand that the division of retirement accounts and assets requires a lot of attention to detail. It is essential to consider long-term growth on investment accounts, retirement accounts, and other assets that you and your ex-spouse may have invested. Working with an experienced attorney who can look out for your best interest and ensure the divorce settlement is equitable is critical.

Schedule An Appointment With A Skilled Divorce Lawyer At Azemika & Azemika

Our law firm, Azemika & Azemika, serves Kern County and is exclusively devoted to family law. Our skilled attorneys customize solutions based on the needs of each client. We are experts in cases involving divorce, child custody and visitation, child and spousal support, adoptions, and more.

We are here to help you; you deserve the best representation to protect your rights and future. Contact us today for a consultation.

California Divorce – Residency Requirements

October 26, 2022September 5, 2022 by wpadmin

Filing for divorce can be a complicated process with varying degrees of complexity depending upon your situation and the state you live in, as divorce laws differ from state to state. When filing for divorce in California, you must determine if you meet specific mandated residency requirements.

You do not have to file for a divorce in the same state you were married, but the length of time you have been a resident in California or another state may make a difference. If you and your spouse are filing for divorce, working with a lawyer can help you to navigate the complex family court system.

One of the many common questions regarding divorce in California is the residency requirement rule. In this article, we will discuss the residency requirements to file for divorce in California and what your options are if you do not meet them.

Understanding The California Residency Requirement For Divorce

California divorce laws clearly outline the steps for anyone wanting to file for divorce. The first step is for the petitioner (individual filing for the divorce or separation) to file the Petition for Dissolution of Marriage (Form FL-100) with the civil courts in the county they have lived in for the last three months.

When filing for divorce in California, you must meet the strict residency requirements, which mandate that you or your spouse must have lived in California for the last six months and lived in the county where you intend to file the divorce for the previous three months; this is not negotiable. You also must sign the document under oath declaring that you or your spouse fulfills the state’s residency requirement.

If you or your spouse has been a resident of California for a minimum of six months but not a resident of your county for three months, then file in whichever county you lived in previously for a minimum of three months.

You and your spouse are not required to reside together to file for divorce, and you may live in separate counties as long as one of you has been a resident in one county for a minimum of three months before filing for divorce. The courts will accept the petition if you are within the required time frame.

However, if neither of you meets these requirements, the court will deny your request to file, and you must find an alternative route for your divorce; however, you may still file for legal separation. Speaking with a California divorce attorney who can help answer any questions you may have is essential.

Exceptions To The California Residency Requirement Rule For Divorce

The exception to the residency requirement rule is for same-sex couples who were married in California but are currently residents in a state that does not recognize same-sex marriages and will not dissolve them. In this case, you may get a divorce in California regardless of the residency requirements.

To file for a divorce, simply file in the county where you were married.

The other situation is that if you and your spouse are in a registered domestic partnership in California, you do not need to meet the residency requirement rule as a married couple. However, if neither of you meets the requirement, even though the court could end your partnership, it may not be able to make decisions regarding children, property, or support.

You must meet the residency requirements if your domestic partnership is not registered in California.

Alternative Solutions For Divorce In California

Suppose you want a divorce in California but do not meet the residency requirement rule. In that case, you may file for a legal separation until you establish residency in California and can meet the requirements for divorce.
Perhaps you may not meet the requirements, but your spouse does. In this case, you may ask your spouse to file for a divorce; otherwise, you must wait.
Should you meet the residency requirements in a different state, you can also return to that stature and file for a divorce. Make sure to check the residency requirements of the State first to be sure.

Getting a divorce can feel overwhelming and stressful. Hiring an experienced divorce attorney can help ease the stress and ensure you cover all your bases.

Hire A Divorce Lawyer With Experience You Can Trust

At Azemika & Azemika, our practice is devoted exclusively to family law, divorce law, adoption, property division, child custody, and support in Kern County. Our attorneys are experts and will ensure your rights are protected, and your needs are taken care of when going through a divorce.

You don’t have to go through your divorce alone; we are here to help. Contact us today for a consultation.