Family Law

Annulment Versus Divorce

By Joseph Pandolfi, Retired Judge
Learn the differences between annulment and divorce.

The Basics of Getting an Annulment

There are two important things to remember about annulments. First, they are difficult to obtain. Second, they don’t actually end your marriage, but rather declare that—in the eyes of the law—it never existed. Only a court can determine whether a marriage should be annulled. Continue reading to find out what you'll have to prove to a judge in order to obtain an annulment.

Legal Reasons for an Annulment

Generally, for an annulment, your marriage must be either “void” or “voidable.” A void marriage is automatically invalid, because it's based on an illegal act. Some common examples are marriages where one of the spouses is already married (bigamy), or those between close blood relatives (incestuous marriages).

A marriage that’s voidable, on the other hand, can legally exist. You may have grounds (bases) for an annulment, but that doesn’t automatically end the relationship. One of the spouses has to specifically request that the court determine the marital status.

Some examples of grounds for annulling a voidable marriage are:

  • Either of the spouses was permanently impotent at the time of the marriage. (However, this isn't a viable reason if the non-impotent spouse knew about the condition at the time.)
  • A spouse hadn’t reached the legal age to marry, under the laws of the state where the marriage occurred. (Unless the underage spouse affirms the marriage after reaching the legal age.)
  • A spouse was under duress at the time of the marriage, such as a threat of violence.
  • Either of the spouses lacked the mental capacity to agree to the marriage. (This could be due to serious mental disease, or possibly alcohol intoxication or being under the influence of drugs.)
  • The marriage is based on fraud, such as where a spouse who is addicted to drugs fails to tell the other spouse of the condition prior to the marriage. (This assumes the defrauded spouse wouldn’t have agreed to the marriage if the condition had been known.)

Regarding voidable marriages, note that if you ratified (approved) the marriage after learning of the circumstances that could make it invalid, it’s unlikely a court will grant an annulment. An example of ratification might be where spouses continue living together as a married couple, after a defrauded spouse finds out the other spouse lied about a desire to have children.

Additionally, state laws may impose a time limit on your right to seek an annulment —the exact time period will vary from state to state.

The Basics of Getting a Divorce

Unlike annulment, divorce is premised on the existence of a valid marriage. They are similar, however, in that you have to file a divorce petition (complaint) with the court, and you need to state your grounds (reasons) for the divorce in order to proceed.

Grounds for Divorce

In the past, grounds for divorce were exclusively “fault-based,” which means that one of the spouses had to claim and prove that the other spouse was guilty of wrongdoing. Some classic examples of such offenses are adultery, physical or mental cruelty, and desertion.

However, divorce law has evolved over the years, and now every state also provides some form of “no-fault” grounds for divorce. The most common are irreconcilable differences, incompatibility, or irretrievable breakdown, which all mean roughly the same thing—the marriage is broken beyond repair. In most states, you can also file for divorce based on a separation—you'll need to show that you've lived separate and apart for a certain period of time (usually a year to eighteen months, depending on your state’s laws).

Which Road to Take

The reality is that, in most cases, you won’t have a choice as to the method of ending your marriage. Let’s look at the various scenarios.

You Don't Have Grounds for an Annulment

If this is the case, divorce is the only viable path to terminating your marriage. Of course, you could opt for a legal separation, either through the courts if your state offers it, or with a written separation agreement (also called a property settlement agreement). Although a legal separation may provide many of the rights and obligations found in divorce, it doesn’t formally end the marriage.

Your Marriage Is Void

If your marriage is void (not “voidable”), divorce is not an option available to you. Under the law, your marriage never existed, so there’s no marriage to terminate. The only alternative you have is to apply for an annulment.

Your Marriage Is Voidable

This is the one scenario where there may be a gray area. If your relationship meets the criteria for a voidable marriage, you can file for an annulment. However, if you ratify the marriage, thus validating it, you can likely pursue a divorce.

The Relief You May Be Entitled To

There can be a significant difference between divorce and annulment when it comes to issues such as alimony, child support, custody and visitation, and division of property.

A child’s welfare is of utmost importance to a court. Therefore, whether it be divorce or annulment, a judge will always have the authority to address child support, custody, and visitation.

Alimony and property distribution are a different story. In a divorce, a court will typically address both these issues. That’s not to say a judge will automatically award alimony, or divide property equally. But these are always legitimate topics of discussion.

In an annulment, a spouse’s right to seek alimony, or a court’s ability to oversee property distribution, depends on the laws of the state in which the annulment proceeding is started. For example, regarding alimony, New York and New Jersey permit it, but California doesn’t. New York also allows a judge to deal with property distribution, but New Jersey and California don’t.

Both divorce and annulment involve court proceedings. In that respect, anticipate spending money on court costs and legal fees in either case.

The issues involved in divorce and annulment can be quite complex. For guidance, be sure to consult a reputable and knowledgeable divorce attorney.

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