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

How does Mediation benefit children?

Experienced Bay Area divorce attorneys will tell their clients that in a mediated divorce, both parents agree to work together to do what’s best for their children. This means they cooperate to make a plan for how each parent will be involved with their children and how to make decisions as circumstances change. The parenting plan is often based on needs of the and it has a better chance of success.  

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.

What is an Ostler/Smith Order?

Experienced family law attorneys in the Bay Area will tell clients that an Ostler-Smith order is an additional support order (child or spousal) that takes into account overtime or bonus income. 

How is child support calculated? 

Under California Family Code Section 4058, salary and wages are includable for purposes of determining annual gross income. Gross income can also include income such as commissions, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Social Security benefits, and spousal support actually received from a person not a party to the order at issue.  And what about inheritance? Although a party’s inheritance is not income under Family Code 4058, the court may consider it as a “corresponding reduction in living expenses”.  

What is a bonus table? 
If you or your ex has an income that fluctuates due to overtime or bonus income, the court will order a set amount for support and an Ostler-Smith order for any overtime earnings or bonus income. At the time the child support is set, the Court will refer to a schedule which provides for a specified percentage of any bonus or overtime to be paid “as and for” child support. The actual percentage will vary depending on the amount of the bonus or overtime.  (See below for an example).

The person who pays support could be ordered to pay a base rate of $2,000 per month for child support.  In addition, he court could also issue an Ostler-Smith order of a fixed percentage of all bonus income received payable as additional child support.  

The payor spouse can be ordered to pay a bonus percentage for both child and spousal support.

Typically,  "Bonus income" is defined as income resulting from employment or self-employment in excess of regular periodic earnings.

Contact a family law attorney today to speak about bonus income and what you or your child may be entitled to receive or what you may be ordered to pay. 

I'm always interested in hearing from readers of this blog and if you have questions, you can reach out to me at amanda@gordonfamilylaw.com or (415) 326-4148. 

Sample Ostler Smith Order