Family Law

Can This Marriage be Annulled?

By Lina Guillen, Attorney
Divorce isn't the only way to end a marriage: Annulment also terminates marital status, but goes a step further by voiding a marriage, so it's as though it never happened.

When Is Annulment an Option?

Just like a divorce, a civil annulment (which isn't the same as a religious annulment) ends a marriage: Spouses become single again and can remarry. But an annulment goes one step further by voiding a marriage--as if it never existed.

To get an annulment, you'll have to prove your marriage is "voidable," meaning it was valid, but should be nullified (voided or canceled) based on one of the following grounds:

  • 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 false statements, and the other spouse agrees to marry based on a belief that the statements were true, or
  • a physical impairment, including sexual impotence, which prevents the couple from consummating the marriage.

If you knew about your spouse's impotence before you married, you can't use that as the basis for an annulment.

Void or Illegal Marriages

You can also get an annulment based on a void marriage. Unlike a voidable marriage, a void marriage is automatically invalid, because it wasn't legal in the first place. Any of the following situations make it illegal to marry:

  • bigamy--one spouse is already married to someone else
  • 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 the underage spouse stays married after reaching the age of consent), and
  • incest--most states outlaw marriages between relatives that are closer than second cousins.
These types of marriages are considered void or illegal from the start. Your state may offer annulment, divorce, or both to end a void marriage.

Annulment Pros and Cons

You should 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 don't usually divide property during an annulment proceeding, but in some states like New Jersey, courts can award alimony (spousal support). In a divorce, you'll have more issues to deal with, like property division, child custody and support, and possibly attorney's fees.

But if children are involved in an annulment, judges will have to consider custody and support arrangements. An annulment won't 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 a judge later annuls the marriage. And an annulment won't affect paternity, which means the husband will still be the presumed father of any children his wife gave birth to during the marriage.

Annulment Disadvantages

There are challenges to seeking an annulment over a divorce. First, proving the grounds for an annulment can be more complicated and expensive. Today, all states offer no-fault divorce, where spouses can simply cite irreconcilable differences as the reason for the split. With an annulment, you'll have to prove that at least one of the grounds listed above existed at the time of the wedding. This requires investigation, discovery--including depositions--and a court trial, where you'll have to bring evidence, examine witnesses, and testify.

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

Annulment isn't for everyone, and only a small percentage of marriages qualify for one, but 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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