Family Law

Can This Marriage be Annulled?

By Lina Guillen

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When Is Annulment an Option?

Just like a divorce, a civil annulment (which is not the same as a religious annulment) terminates marital status, thereby returning spouses to legally single people that can remarry, but it also voids a legal marriage, which essentially means the marriage never existed.

A spouse requesting an annulment must show a court that the marriage was invalid from the start, based on one of the legal grounds for annulment. While the grounds vary a bit by state, they generally include the following:

  • unsound mind--one spouse lacked the ability to give consent due to a mental impairment or the influence of drugs or alcohol
  • force or coercion--one spouse was coerced into the marriage, by force or threat of force
  • fraud--one spouse makes untrue statements, and the other spouse agrees to marry based on a belief and reliance that the statements were true, and
  • a physical impairment, including incurable sexual impotence, which prevents the couple from consummating the marriage.

Incurable impotence that prevents consummation can be grounds for annulment as long as you didn't know about your spouse's impotence before you married.

Legal Issues and an Invalid Marriage

Some factors also make it illegal for people to marry. Depending on the problem, state law may offer annulment, divorce, or both methods as ways to end the marriage. Any of the following situations may make it illegal to marry in your state:

  • bigamy--one spouse is already married to someone else at the time of marriage
  • under the age of consent--at least one spouse is underage and doesn't have parental consent or court approval to get married (annulment may not be available if someone remains married once he or she reaches legal adult age), and
  • incest--most states outlaw marriages between relatives that are closer than second cousins.

Annulment Pros and Cons

Weigh the advantages and disadvantages of annulment before you decide how to end your marriage.

Annulment Advantages

The main benefit of annulment is that the law treats the marriage as if it never existed. It's over, and there are no further issues to deal with. Courts will not typically divide marital property when a marriage is annulled. However, in some states like New Jersey, courts have authority to award alimony. In a divorce, on the other hand, you will likely have to deal with many issues, including alimony (both temporary and long term), property division, and child-related issues.

However, if there are minor children involved in an annulment case, courts will consider custody and child support arrangements. In addition, an annulment will not affect the legitimacy of any children born during the marriage. In New York, for example, children born while their parents are married are legitimate, even if that marriage is later annulled or declared void by a judge. Additionally, an annulment won't affect the presumption of paternity, which means the husband will continue to be the presumed father of any children his wife gave birth to during the marriage.

Click here for more information on state annulment laws and requirements.

Annulment Disadvantages

There are challenges to seeking an annulment. First, proving the grounds for an annulment may be more complex and costly than a divorce. Today, all states have a no-fault option for divorce, where spouses can simply cite irreconcilable differences as their reason for the split. With an annulment, you'll have to prove that one (or more) of the above-referenced grounds existed at the time of the wedding. This will require divorce discovery, including depositions, and a court trial, where you'll have to submit evidence and bring witnesses.

Second, state law may place time limits on annulment, and your window to use it may have closed already

Annulment isn't for everyone. Only a small percentage of those who are married can even qualify for one. If you think annulment may be right for you, you should talk to a local attorney to discuss your rights and options.

Questions for Your Attorney

  • Will a church annulment affect my marital status?
  • How does annulment affect legal rights that are usually connected to divorce, such as keeping health insurance through COBRA and Social Security benefits?
  • How will an annulment affect our children?
  • Are court files for cases involving annulment sealed, or can anyone see the grounds for my case?
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