I feel like my marriage was a fraud, can I get an Annulment?

Maybe. Often clients are surprised at how specific the situations are where the Court will grant an annulment. Here are some common factual circumstances where a marriage can be annulled:  (1) the couple is related by blood, (2) one spouse was already married before entering into the second marriage, (3) one spouse was not eighteen years old at the time of the marriage, (4) either spouse perpetrated a fraud to obtain the other party's consent to marriage, (5) either spouse has a mental condition that prevents them from understanding and appreciating the nature and duties of marriage—including severe intoxication.

We did not record our marriage certificate, can I get an Annulment?

No. One of the most common questions is whether failure to record a marriage certificate is grounds for an annulment.  Unfortunately, in California the failure to record a certificate of registration of a marriage does not invalidate an otherwise valid marriage. Marriage of Cantarella(2011) 191 CA4th 916, 925.

My spouse only married me to get a Visa, can I get an Annulment?

When one spouse persuades the other to marry because of a secret desire to remain in the United States.  A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties.

What are examples of fraud that constitute nullity or annulment?

California courts have found the following circumstances as evidence of fraud: (1) if either party hides the knowledge of infertility or sterility, (2) the female partner  hides an existing pregnancy, (3)  concealed intent not to live with the other spouse or (4) concealment of the intent to not to engage in sexual relations with the other spouse, (5) or concealment of the intent to not to have children despite a promise to the contrary.

A recent example where a finding of fraud was supported was in Marriage of Ramirez where a spouse’s intent to ignore his marital obligation of fidelity supported a finding of fraud when the husband intended to continue ongoing simultaneous sexual relationships with both his wife and her sister at time of marriage.

However, not every unhappy situation is a fraud.  For example, an allegation that “the husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem” was not enough to justify a judgment of nullity.  Additionally, a spouse’s premarital misrepresentation of his financial status was not enough to grant an annulment based on fraud. 

If you are thinking about asking for an Annulment on the basis of fraud, contact a family law attorney today, you can reach me at amanda@gordonfamilylaw.com

The 10 Year Rule

Is there anything special about a divorce if we are married for 10 years?

Yes. In California there are three benefits to being in a long-term marriage or a marriage for more than 10 (ten) years. I often hear clients talk about the 10 year rule. Experienced family law attorneys in the San Francisco Bay Area of California will tell you that the 10 year rule only applies to very specific aspects of your divorce. 

First, California spousal support rules provide that if a marriage is longer than 10 years the  court will always retain the ability to order that support be paid to the lower wage earner in the marriage. 

Second, the Social Security Administration considers a marriage of 10 years to be a long-term marriage. How this plays out in practice is that if you do not get remarried, you can collect derivative Social Security benefits based on your ex partner’s earnings record at the age of retirement. Those derivatives are usually one half the amount your ex partner is eligible to collect. This is because spouses retain the right to apply for Social Security derivative benefits only if married for 10 years during which the employee spouse contributed to Social Security. 42 USC §402(b)–(c). 

Third, if you ex-spouse is a member of the US Military and you have been married for 10 years or longer, you will receive a pro-rated portion of his/her retirement. 

Contact amanda@gordonfamilylaw.com for more information. 

How can I get a Divorce in California?

There are many methods of getting a divorce in San Francisco Bay Area of California, and each method has its own advantages and disadvantages as well as price tag. 

1.     Do your own divorce without any attorneys ($)

2.     Hire a paralegal or a legal assistant to help with documents ($$)

3.     Meet with a consulting attorney for a few hours ($$)

4.     Divorce Mediation ($$)

5.     Each spouse hires his/her own attorneys for collaborative divorce ($$$)

6.     Each spouse can hire a litigation attorney to go to court ($$$$)

For example, a study in Boston claimed that the average cost of a divorce mediation is $6,600, compared to $26,830 for the lawyer negotiated divorce and $77,746 for the traditional family court litigation.  Not all divorces are the same, and you should choose the process that is both cost effective and protects your legal rights. Contact Gordon Family Law to learn which divorce process is right for your family. 

Contact amanda@gordonfamilylaw.com for more information.

Isn't there any easy way to divorce in California?

Many California divorce clients ask if there is an easier way to get a divorce. And the answer is that it depends. Some individuals meet the requirements for a Summary dissolution. The barebones requirements are that you have been married less than 5 years without children and have limited debts and assets.  

The Self Help Section of the California Court's provide the following checklist (See the Courts Page for more info):

DO YOU QUALIFY FOR A SUMMARY DISSOLUTION?

To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements.

You and your spouse:

• Have been married for less than 5 years (from the date you got married to the date you separated);

• Have no children together born or adopted before or during the marriage (and you are not expecting a new child now);

• Do not own any part of land or buildings;

• Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);

• Do not owe more than $6,000 for debts acquired since the date you got married (called "community obligations");

  • Do not count car loans.

  • Click for a worksheet to help you figure your debt.

  • Click for a sample with instructions for the worksheet.

• Have less than $40,000 worth of property acquired during the marriage (called "community property");

  • Do not count your cars.

  • Click for a worksheet to help you figure the value of your property.

  • Click for a sample with instructions for the worksheet.

• Do not have separate property worth more than $40,000;

  • Do not count your cars.

  • Click here for a worksheet to help you figure the value of your separate property.

  • Click for a sample with instructions for the worksheet.

• Agree that neither spouse will ever get spousal support; AND

• Have signed an agreement that divides your property (including your cars) and debts.

  • Click to see a fillable property agreement.

  • Click to see a sample agreement with instructions.

In addition, if you are married, either you or your spouse must have lived in California for the last 6 months and in the county where you file for summary dissolution for the last 3 months. If you do not meet the residency requirement, you can still file for a legal separation but you have to go through the regular legal separation process, or wait until you meet the residency requirements for a divorce.

See http://www.courts.ca.gov/1241.htm for more info.  

Does getting a divorce have any tax benefits?

San Francisco Bay Area family law attorneys may tell you about the tax consequences, but are there any benefits?

Yes. You may be able to deduct the legal fees paid for tax advice related to your divorce and you can deduct any legal fees related to spousal support. 

These deductible fees can be claimed only if you itemize deductions on Schedule A (Form 1040). You must claim the fees as miscellaneous itemized deductions subject to the 2%-of-adjusted-gross-income limit. You can contact me at Amanda@gordonfamilylaw.com for more information.