Annulment and divorce are both legal procedures used to end a marriage, but they are not the same thing. The key difference between an annulment and a divorce lies in the validity of the marriage at the time of the wedding.
- An Annulment is a legal process that voids a marriage that never existed under the eyes of the law. Annulment is granted on specific grounds such as fraud, bigamy, or lack of mental capacity.
- Divorce, on the other hand, terminates a valid marriage. It is the process of legally ending a valid marriage.
Why Would A Person Want to Get an Annulment as Opposed to a Divorce?
The main benefit of getting an annulment instead of a divorce is that an annulment treats the marriage as if it never existed. This means that the marriage is legally considered void from the start. If you can get an annulment, you can honestly say you were never married.
In contrast, a divorce ends a legally recognized marriage but does not erase the fact that the marriage existed.
Some of my clients want to get an annulment instead of a divorce for religious and others for personal reasons. In most cases, I tell my clients I can likely obtain an annulment for them when the marriage is short, and there were few assets or debts to divide. If the marriage is longer, there are kids and/or assets to divide, I tell my clients getting an annulment will be difficult.
Grounds for Annulment
It’s important to note that annulments are not always available, and every state has specific requirements and grounds for annulment. I tell my clients that getting an annulment is more difficult than obtaining a divorce. While the laws will vary depending on the state, the following are some common grounds for an annulment:
1. Lack of Mental Incapacity
Mental incapacity is generally considered a valid reason to obtain a marriage annulment. Mental incapacity typically involves one spouse being unable to understand the nature and consequences of marriage due to a mental disorder or disability.
2. Fraud or Misrepresentation
Fraud or misrepresentation are considered valid reasons to obtain an annulment. In general, to get an annulment based on fraud, you must prove one spouse made a material misrepresentation or concealed vital information from the other spouse before the marriage. This could include lying about one’s age, criminal history, pregnancy, the ability to have children, or financial status.
3. Being Intoxicated at the Time of the Wedding
If one spouse was so intoxicated at the time of the wedding that they could not understand the nature and consequences of the marriage, it would generally be considered a valid ground for annulment.
4. Being Married to Someone Else (Bigamy or Polygamy)
Bigamy and polygamy are generally considered valid reasons to obtain an annulment.
5. Being Under the Age of Consent (Usually 18 Years Old)
Being underage at the time of the wedding is generally considered a valid reason to obtain an annulment.
6. Being Under Undue Duress or Coercion
Duress refers to situations where one spouse was forced into the marriage against their will by the use or threat of violence or other illegal means. Coercion refers to situations where one spouse is forced into the marriage by undue pressure or manipulation.
7. Being Mistaken About Being Pregnant
In general, if one spouse believed the other spouse was pregnant, and that belief was the main reason for getting married, and it turns out that the other spouse was not pregnant, it may be considered a valid ground for annulment.
8. Failing to Consummate the Marriage
In general, if one spouse is unable or unwilling to consummate the marriage and the other spouse finds it unacceptable, it may be considered a valid ground for annulment.
In general, if one spouse was impotent at the time of the wedding, and the other spouse finds it unacceptable, it may be considered a valid ground for annulment.
10. Being Closely Related (Legally Defined as Incest)
Incestuous marriages are void from their inception and, therefore, can be annulled.
11. Not Satisfying Your State’s Marriage Waiting Period
Most states have a waiting period. For example, in Missouri, where I practice law, there is a three (3) day waiting period. If you were to get married before the third day, your marriage would be voidable, and the marriage could be annulled.
12. Concealing a Recent Divorce
In some states, the court may grant an annulment of a marriage if you discover your spouse was divorced within 30 days before your wedding date and the divorce was concealed from you.
For a Detailed Artical About the Common Reasons for an Annulment, you won’t want to miss this article: 10 Common Reasons for a Marriage Annulment
Grounds for Divorce
If you were legally married and there are no grounds to annul the marriage, your only option to end the marriage will be to obtain a divorce. I tell my clients that everyone can get divorce. It may be a fight, but in the end, there is no way to stop a divorce.
All 50 states have some form of “no-fault” divorce. This means a spouse can file for divorce without proving that the other spouse did something wrong, such as abandonment, abuse, or adultery.
Instead, the divorce is based on the idea that the marriage has broken down and can no longer be salvaged. Most states describe this as a marriage that is irretrievably broken or that the couple no longer wants to be married because there are irreconcilable differences.
Differences in Alimony in an Annulment vs. a Divorce
One of the main disadvantages of an annulment revolves around the right to alimony. Alimony is a payment made by one spouse to the other spouse after a legal separation or divorce. The purpose of alimony is to provide financial assitance to a spouse who may have limited earning capacity or who gave up their career to care for the home and family.
In general, alimony is not awarded in annulled marriages. An annulment is a legal declaration that a marriage was never valid. As such, a judge cannot award alimony because the marriage never existed.
There are a few states that do allow a judge to award alimony after a marriage annulment. Those states include:
- New Jersey
- New York
Please note that this list is not exhaustive, and the laws regarding alimony after annulment can change over time.
If you are going through a divorce, alimony is recognized in some form in all 50 states in the United States.
If you are considering asking for alimony, consider filing for a divorce instead of an annulment.
Division of Marital Property in an Annulment vs. a Divorce
Division of Property in a Divorce
In a divorce, marital property is typically divided based on equitable distribution laws.
This means that the court will attempt to divide the couple’s property and assets in a fair and equitable way. This does not mean the property will always be divided equally. A judge will consider factors such as the length of the marriage, the income and assets of each spouse, and the reasons for the divorce when dividing property in a divorce.
Division of property in an Annulment
Because annulments are often performed soon after marriage, they avoid many property-division issues. Typically, in an annulment each spouse retains the assets and debts they brought into the marriage. An annulment generally restores both spouses to their pre-marriage status regarding assets and debts.
The difficulty comes when a couple wants to annul their marriage after being married for years. If the marriage was void from the start but has lasted for years, it has been my experience that judges will refuse to annul the marriage and instead require the couple to obtain a divorce.
Here is a classic example. Assume a young bride lies about her age and marries unlawfully at 17. Since she is underage, she would be legally entitled to have the marriage annulled. But, what is a judge to do if the couple stays married for 15 years, has three children, and has a house, two cars, and debts?
In a case like this, most judges would not grant an annulment even though the marriage could be technically annulled.
Here is why, when you argue that a marriage is void and not legally valid, you also claim that the legal rights and obligations of the state’s marital property and alimony laws do not apply.
This means that you and your spouse cannot use community marital property laws to determine how to divide the property and debt you acquired while married. Furthermore, in most states, a spouse would not be entitled to alimony or other benefits, such as health insurance or a percentage of the other spouse’s retirement benefits.
Accordingly, annulments are not typically granted if the marriage has existed for a long time.
Is it Easy to Get an Annulment?
In general, getting an annulment is not easy. Getting a divorce is easier.
I tell my clients that an annulment will be easier to obtain if the marriage was of a short duration, the couple did not acquire many assets or debts during the marriage, and if the reasons for the annulment are clear-cut, such as fraud, coercion, or lack of consent.
However, annulments become more challenging to obtain if the couple has been married for a longer time, if they have children, or if they have significant property or financial issues that need to be resolved.