You can seek a Judgment of nullity, rather than a divorce, only if the validity of your marriage is in question. Simply put, a divorce is the remedy to terminate a valid marriage, on grounds arising “after” the marriage, whereas a nullity proceeding can be brought on the theory that for reasons existing “at the time of the marriage”, no valid marriage ever occurred, i.e. the marriage from its inception was either “void” or “voidable”.
You can seek to annul your marriage if there were irregularities in the formalization process required by law, such as failure to obtain a valid marriage license or lack of solemnization by the proper authority and authentication. However, you should note that noncompliance with these procedural steps by anyone other than you or your spouse would not invalidate the marriage. There are additional grounds that may render your marriage void or voidable, in which case you have the option of seeking an annulment rather than a divorce. These include the following: incestuous marriages (between parents and children, ancestors and descendants of every degree, siblings of the half and whole blood, between uncles and nieces or aunts and nephews); bigamous and polygamous marriages (contracted by a person during the life of a former husband or wife, where former marriage was not dissolved or annulled); marriages induced by fraud or force, where the consent of one party to the marriage is obtained through intentional misrepresentation of a material fact or by force; and marriages where consent to the marriage is obtained from a party who is under the age of consent (minor), from someone who is of unsound mind, or from someone who at the time of marriage is physically incapable of entering into the marriage.
You should also keep in mind that a “voidable” marriage (e.g. because of minority, fraud, or force) rather than “void” marriage, which is invalid per se, is valid unless and until the court declares it to be null. As such, a voidable marriage may also be terminated by a divorce unless the party entitled to have it annulled raises the issue of nullity. Assuming that your marriage is “voidable” and you have the option of seeking an annulment as opposed to a divorce, you should consider that generally, the grounds to obtain an annulment (enumerated above) are more difficult to prove than a divorce (irreconcilable differences). There are also additional time restrictions and limitations in bringing a nullity action which are not applicable to divorce proceedings. Depending on the specific facts of your case, including any applicable time restrictions, you may opt to seek a divorce rather than an annulment.
Azita Avedissian is a partner with Phillips Lerner, A Law Corporation in Los Angeles.