Family Law

Effects of Annulment

By Joseph Pandolfi, Retired Judge
Learn more about how annulment affects marriage.

What Is an Annulment?

Generally speaking, an annulment is a legal process that ends a marriage. Of course, so does a divorce. The difference, however, is that if a court grants an annulment, not only is the marriage over, it never really existed. In short, the court is saying the marriage shouldn’t have happened in the first place.

Legal Reasons for an Annulment

In order to obtain an annulment, a marriage must either be “void” or “voidable.” A void marriage is invalid on its face, because it's based on an illegal act. Classic examples are marriages involving bigamy or incest. It’s against the law and amounts to bigamy if you marry someone while you’re already married. All states have laws against incest and close relatives marrying one another.

A marriage that’s voidable, on the other hand, can legitimately exist. In this situation, having legal grounds (bases) for an annulment doesn’t automatically terminate the relationship. One of the spouses must file an annulment action with the court, requesting termination.

Some common grounds for annulling a voidable marriage are:

  • Either of the spouses was permanently impotent at the time of the marriage. However, the non-impotent spouse must not have known of the condition at the time.
  • A spouse was under the legal age to marry, under the laws of the particular state (unless the underage spouse affirms the marriage after reaching the mandatory minimum age).
  • A spouse was under duress at the time of the marriage. An example would be where one spouse coerced the other to marry, such as with threats of violence.
  • Either of the spouses didn’t have the mental capacity to agree to the marriage. This not only refers to a serious, inherent mental impairment, but also to an inability to consent for reasons such as alcohol intoxication or being under the influence of drugs.
  • The marriage is based on fraud. For example, a drug-addicted spouse failed to reveal the condition before the marriage. However, the fraud must be such that the duped spouse wouldn’t have agreed to the marriage if the truth had been known. Normally, only the defrauded spouse can seek the annulment.

The Legal Effects of an Annulment

In some cases, especially where the marriage was very short, both partners can simply walk away from each other once a court grants an annulment. But it’s more complicated when the couple has young children or substantial property together.

Just because the marriage is annulled, doesn’t mean the court can’t deal with issues such as custody, visitation (parenting time), child support, spousal support (alimony), and division of property. A particular state’s laws will control which of these issues its courts can address during an annulment.

Custody, Visitation, and Child Support

Whether it be in divorce or annulment, the welfare and best interest of the children is of paramount importance to a judge. As a result, it’s virtually a given that in an annulment action a judge will decide custody issues. For a parent who doesn’t have physical custody of the children (that is, the parent with whom the children aren’t living), the court will determine a schedule of when that parent will spend time with them. For more information on custody and visitation, click here.

Because both parents are legally obligated to provide for their children, the court will also award child support. A judge will do this by utilizing state-enacted guidelines that determine the appropriate amount of child support payments, primarily based on the parents’ income(s).

Also, be aware that an annulment normally won’t negatively impact the legitimacy of the children.

Spousal Support (Alimony)

You might think that spousal support shouldn’t even be a consideration in an annulment proceeding. An annulment means there was never a marriage, so it seems logical to conclude that the participants were never spouses.

Despite that reasoning, some states give their courts the ability to award spousal support in annulment actions. For example, New York and New Jersey permit it. California, however, doesn’t.

That said, and considering how alimony laws have become more restrictive over the years, obtaining an alimony award in an annulment is a long-shot. Again, each state’s laws will control this issue, so you should determine how those laws apply to your situation.

Property Distribution

If a couple has accumulated property during their time together, they may want the annulment judge to decide how to divide it between them. Some states allow their judges to do that, others don’t. Using the three states mentioned in the previous section, New York courts can make property decisions, but courts in New Jersey and California can’t.

If your state doesn’t permit property distribution in an annulment, title to the property will pass according to the state’s general property ownership laws.

Some Additional Points

Regarding voidable marriages, it’s important to be aware that, in many cases, spouses seeking an annulment must not have approved of the marriage (ratified it) after they discovered the circumstances that could make the marriage invalid. If they did ratify it, it’s almost certain the court won't grant the annulment.

Note that once a marriage is annulled, you lose inheritance rights you may have had as a spouse. (This is true of divorce, as well.) Finally, it's important to understand that your right to seek an annulment may be subject to time restrictions (statutes of limitations). The law governing this issue can vary from state to state.

Annulment cases can be quite complex, particularly for someone unfamiliar with the laws. Consider seeking guidance from an experienced divorce attorney in your area.

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