Annulment or Divorce? Why it matters
Is Annulment Right for You? Don’t Jump the Gun and Shoot Yourself!
If you’re contemplating ending your marriage and wondering if an annulment is right for you, I’m here to help.
An annulment may seem more appealing if you belong to a religious or conservative community that frowns on divorce. Annulling your marriage may appear like a clean break without the stigma of being a divorcee.
But before jumping in, educate yourself about the differences between an annulment and a divorce in the state where you live.
Whether an annulment is preferable in your case rides on several factors. Your rights are different depending on the proceeding you choose and the laws where you live. So choose with care guided by an experienced family law attorney in your area who can explain how your local laws apply to your situation.
In this post, I will discuss important factors to consider in deciding whether to pursue an annulment or a divorce.
Let’s begin!
What is an annulment?
An annulment is a legal proceeding that declares a marriage invalid, as if it had never occurred.
The court determines there was a defect in the marriage that made the union void or voidable at the onset. Therefore, annulments are available under extremely limited circumstances.
An individual seeking an annulment must prove to the court that the invalidating circumstances existed when the marriage took place.
When is an annulment suitable?
An annulment may be a better option for short marriages, where the couple discovers that their marriage was not legal, or for a spouse who was deceived or coerced into the marriage. Additionally, an annulment does not require a waiting period before filing, so the parties may proceed right away.
Longer marriages may have more issues to resolve, such as the distribution of property acquired jointly and issues involving children. Divorce may be more appropriate in these cases, as I will explain below.
Differences between annulment and divorce
A divorce, unlike an annulment, dissolves a valid marriage.
Every state has different grounds for divorce that typically include problems that developed after the wedding, like irreconcilable differences, abandonment, adultery, or cruelty.
Some states require a waiting period before a party can file for divorce, ranging from a few months to a few years.
In many jurisdictions, an annulment is harder to get than a divorce because there are fewer available grounds and they may be difficult to prove.
Common grounds for annulment
The grounds for annulment vary by jurisdiction. You must present evidence and convince the court that these factors existed before the wedding ceremony and that you did not know about them at the time.
Common grounds for annulment include:
1. Fraud or misrepresentation
If your spouse misrepresented or lied to you about a significant matter to induce you to marry, you may file for annulment. This may include marrying to get a green card, hiding an addiction, their desire to have children, or pregnancy by another partner.
A family law attorney can advise you if your spouse’s lie or misrepresentation is sufficient to support a petition for an annulment.
2. Coercion
You can get an annulment if your spouse forced you to marry under threats of violence or death to yourself or family members.
3. Underage marriage
Each state has an age, typically 18, before individuals can be married without parental consent. If you or your spouse were younger than the age of consent when you wed, you may seek an annulment.
4. Bigamy
If you discover your spouse was already married to another person at the time of the marriage, you can annul your union. Since bigamy is a crime, your spouse can also be prosecuted for the offense.
5. Incest
If you discover that you and your spouse are close blood relatives, your marriage can be terminated on those grounds.
6. Mental incapacity
If one spouse lacked the capacity to understand they were getting married due to intoxication by drugs or alcohol or due to a mental disability, the marriage can be annulled.
7. Impotence or lack of consummation
Your marriage can be annulled if your husband concealed he was impotent and is unable or unwilling to engage in sexual relations. A man can file for annulment if his wife knowingly lied about being infertile. These conditions must exist when you got married. Becoming impotent or discovering infertility after marriage does not qualify for an annulment.
The annulment process
The annulment process begins by filing a petition with the court stating the grounds for your request. You must also serve this petition on your spouse.
If your spouse contests the petition, the court will hold a hearing where you will have to present evidence and prove your case.
The court will evaluate the evidence and grant or deny the annulment. Depending on your state, the court may also decide other issues associated with parenting your children and property division.
Once the court grants your petition, the marriage is deemed voided and the parties become single, instead of divorced.
Why it matters
Since an annulment voids the marriage as if it had never occurred, the laws handle issues differently in annulment versus divorce cases.
Choosing an annulment may be a dangerous move. Since the court decides a marriage didn’t exist, you could lose some rights afforded to divorcing spouses. That’s why you must have an attorney explain your options in detail.
Here are just a few of them:
1. Property division in annulment cases
In divorce cases, the court decides how to divide assets and debt acquired during the marriage. The laws may provide for equitable distribution or community property depending on where you live. These laws may not apply to annulments, and the division of property and liabilities may be more complicated. Or you may lose rights to property, such as the marital home, that you may be entitled to in a divorce. Make sure you understand your rights under each scenario before you proceed.
2. Annulment and alimony
In some states, spouses have a right to spousal support after a marriage ends in divorce. That may not be true in an annulment, where a court rules that the marriage never existed.
Do not cheat yourself. Speak to a family lawyer first and find out if you could lose your right to alimony if your marriage is annulled.
3. Child Custody and Support
Children born of your relationship do not cease to exist when a marriage is voided. But their rights may differ from the children of divorce. Divorce laws provide certain benefits and protections and the legal mechanisms to enforce them.
In annulment cases, the law may limit your children to the rights available to children born out of wedlock.
Do not deprive your children of what belongs to them. Educate yourself regarding their rights under each proceeding with the help of a family lawyer, so you can protect their rights.
4. Annulment and taxes
An annulment can also affect your taxes and any joint returns filed during the marriage will need to be amended. Consult with a financial advisor or tax accountant before you petition to annul your marriage to determine the tax consequences compared to a divorce.
5. Annulment and immigration
Marriage to a U.S. citizen or permanent resident may give you immigration rights. The end of a marriage under either proceeding may affect the immigration status of the non-citizen spouse.
The U.S. government takes marriage fraud seriously and seeks deportation for suspected marriage fraud. In these cases, the immigrant must prove they married their spouse in good faith, not to get a green card.
If you’re an immigrant, talk to an immigration attorney if you are seeking to end your marriage or your spouse files for annulment or divorce.
6. Annulment and prenups
When the court voids a marriage as if it never occurred, your rights under a prenuptial agreement may end as well. Consult with a family attorney to find out if the law in your state enforces prenuptial agreements in your case.
7. Annulment and religion
If you think you’re better off annulling your marriage for religious reasons, think again. The court proceeding only invalidates your civil marriage and has nothing to do with your religious union.
If you desire a religious divorce, such as a catholic annulment or Jewish get, you must pursue it separately after the court grants the divorce.
Conclusion
As you can see, ending your marriage, whether by annulment or divorce, can have serious consequences for the quality of your life.
Before proceeding, make sure you understand the laws and how they affect you and your children in each scenario. A competent family law attorney is your best defense to make sure your rights and your future are protected.
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