Types of Annulment

It is important to note that there are two types of annulments:

Religious Annulments

One type of annulment is a religious annulment. Some churches do not recognize divorce and will only allow a person to be remarried within the faith if a religious annulment is obtained. The grounds for obtaining a religious annulment are different than those for obtaining a civil annulment.

The Catholic Church is one of the major entities that requires a religious annulment. This church’s principles teach that marriage is a lifelong bond, so if a divorced spouse wishes to remarry within the church, he or she is required to obtain a declaration of nullity. A diocesan tribunal determines whether to grant a religious annulment for a Catholic parishioner.

This tribunal determines whether something essential was missing at the time that the marriage was entered into. One or both spouses must prove the grounds for the religious annulment. If the church grants the annulment, both spouses can remarry someone else. The legitimacy of any children born during the marriage is not affected if an annulment is granted or refused.

Some of the grounds for an annulment in the Catholic church include:

• Insufficient use of reason — For this ground, you must prove that you or spouse did not understand what was happening during the marriage ceremony due to a lack of consciousness, insanity or mental illness
• Grave lack of discretionary judgment — You must prove that you or your spouse was affected by serious circumstances or factors that made you unable to judge the rights and duties of marriage
• Physic-natured incapacity — This is similar to the legal grounds of impotency in which you must show that you or your spouse was unable to carry out the physical obligations of marriage
• Error about a quality of a person — This ground is based on the idea that you or your spouse intended to marry someone who had or did not have a certain quality, such as marital status, social status, religious conviction, education, criminal record, or freedom from disease
• Fraud — You must show that you were intentionally deceived about a quality or lack of quality in the other in order to convince you to marry
• Total willful exclusion of marriage — This ground is based on the concept that the marriage was entered into not as a religious practice but rather for a legal reason, such as obtaining immigration status or legitimizing a child
• Willful exclusion of children — It is grounds for a religious annulment in the Catholic church if one of you entered the marriage with the intent to deny the other’s right to have children
• Willful exclusion of marital fidelity — You or your spouse married with the intent not to remain faithful
• Future condition — You or your spouse married under the condition that something would happen in the future, such as having an income at a certain level or you would complete your education
• Past condition — You or your spouse married on condition that some past event had not occurred when it had
• Present condition — You or your spouse attached a present condition on your decision to marry that did not exist
• Fear — You or your spouse married because of grave and inescapable fear caused by an outside force.

There are other reasons for religious annulment. If you are interested in obtaining this type of annulment, consult with your spiritual advisor to see if you meet the necessary criteria.

Civil Annulments

The other type of annulment is a civil annulment. The church does not have the legal authority to grant a civil annulment. Likewise, a civil annulment may not on its own be grounds for a religious annulment. The remainder of this guide only discusses civil, legal annulments.

Legal Effect of Annulment

An annulment is a legal procedure that declares the marriage null and void. Civil annulment treats the marriage like it never existed. Therefore, an annulment treats a marriage retroactively. The spouses are considered no longer married and are recognized legally as individuals. They are both free to remarry another person.

An annulment is based on a marriage being found to be void or voidable. Void marriages are those that were not valid at the time the marriage was entered into by law, such as in the case of bigamy or incest. Voidable marriages are those that the spouses may choose to annul, such as in the case of fraud.

Legal Grounds for Annulment

Annulments are based on state law, so the legal grounds to obtain an annulment in one state may be different than the requirements in another state. Some legal grounds for annulment that many states recognize include:

• Fraud or misrepresentation — One of the spouses lied about something material to the marriage, such as the ability to have children, age or already being married.
• Mental incapacity — One of the spouse was legally incapable of consenting to marriage based on mental incapacity, mental illness or intoxication.
• Concealment — A spouse hid a material fact, such as a conviction for a felony, having a sexually transmitted disease or being pregnant by another man.
• Duress — One of the spouses was forced into the marriage.
• Impotency — One of the spouses is impotent and the other spouse was not aware of it.
• Incest — The spouses are closely related enough that their marriage is considered void, such as a marriage between a child and parent, grandparent and grandchild, siblings or first cousins.
• Underage marriage — One or both spouses was under the legal age to marry and annuls the marriage within the applicable time period.
• Bigamy — One of the spouses was already married at the time of the marriage.

In some cases, if a spouse discovers the ground but chooses to continue to be married, the law may treat this situation as though the ground for annulment as being waived and the spouse will not be eligible to raise these grounds for annulment later.

A sample of the legal grounds to get an annulment are discussed below.

When to Get an Annulment

There are certain times when it may be preferable to get an annulment instead of a divorce, including the following:

• It has not been long since you entered into the marriage — Some states have abbreviated procedures to dissolve marriages when not much time has elapsed since the marriage was entered into. You might want to seek an annulment if not much time has transpired between now and the time of your marriage and you have no property to divide.
• You are religious — Getting a civil annulment may make it easier to establish your eligibility for a religious annulment.
• You want to assign blame — In some situations, you may want to assign blame for the wrong marriage and may be able to do so by obtaining an annulment.
• You will receive favorable property treatment — Depending on the state where you get an annulment and your individual circumstances, getting an annulment may give you a better treatment of your property than a divorce.

When Not to Get an Annulment

However, it is important to remember that there are some times when it is actually better to seek a divorce instead of an annulment. These circumstances include:

• An annulment will give you an unfavorable property treatment — In situations where a court declaring your marriage never existed would result in you getting less property than having a court dissolve your marriage through a divorce, the latter is your better option.
• You need spousal support — Many states refuse to grant spousal support in cases in which the marriage never should have been entered into.
• The statute of limitations has passed — Some states have time limits that apply to cases of annulment. If the time limit to assert your right to an annulment has passed, you will need to pursue options for divorce.

For more information on annulment or divorce in your particular situation, consult an experienced family attorney in your state.

What Are the Differences Between an Annulment and Divorce?

The end effect of an annulment and a divorce is the same: the marriage is legally dissolved. However, there are many differences as to how annulments treat the marriage itself. People who get divorced are legally recognized as having been married previously while an annulment acts as if the marriage never occurred. The law recognizes that the marriage was not legal to begin with and corrects this.

While either party can file for a divorce, in some situations, only the aggrieved party may be able to file for an annulment, depending on the grounds for annulment.

During an annulment proceeding, the court tackles some of the same issues that a divorce case would involve, such as:

• Child custody
• Visitation
• Child support

It is important to note that an annulment will not affect the legitimacy of any children born during the union. Additionally, it does not affect a child’s right to financial support.

There are potential differences in how the property rights are treated if an annulment is granted rather than a divorce. This information is discussed in a later section.

Legal Process of Obtaining an Annulment

Obtaining an annulment is similar to the process for establishing a fault-based divorce. The spouse wanting the annulment must petition the court for this relief. He or she must then prove how the other spouse was at fault and how that fault provides the basis for an annulment under state law. During this process, the court will make determinations about various legal aspects, including property division, child custody and child support.

Property Division in an Annulment

Because the legal effect of an annulment is to treat the marriage as though it never existed, the usual treatment of property is to return each spouse to the position they were in before the marriage. Since many annulments occur shortly after the marriage, property issues are often minimal.

However, an important aspect of property treatment for an annulment is that most states do not grant spousal support in the event of an annulment. They reason that because the marriage was invalidated, the spouses do not have a legal right to this type of support. Despite this rationale, some states like New York and New Jersey still allow some spouses who get an annulment to receive spousal support.

In some cases, an annulment can affect the property rights of spouses. Divorce generally involves spouses splitting up their assets 50/50, but an annulment can affect the division. It is often more difficult for a spouse to claim property that legally belonged to the other spouse. Because the marriage is voided at the beginning, there is not technically any marital property to be divided.

The annulment might terminate any property rights that one spouse acquired in the other spouse’s property while they were married. The state may provide equitable arguments to more fairly distribute the property when the spouses are in disparate financial conditions.

In cases of longer marriages, the courts may apply typical divorce laws to divide the property between the spouses. However, state law varies on this topic, so it is important to learn about the laws in your state and consult with a family law attorney who is licensed in your state about your legal rights and obligations.

There may also be effects on real property. Some states recognize “tenancy by the entirety,” which is basically joint tenancy with the right of survivorship that is only available for married couples.

When the annulment is entered, the property might become a tenancy in common, which provides each spouse with an undivided one-half interest in the property that they can sell or use to assert a partition action. If one of the spouses had the property titled in his or her name, this will likely become his or her separate property after the annulment order.

An annulment also cuts off a spouse’s right to inherit from the other spouse. For a spouse to make sure the former spouse receives property at the time of his or her death, the spouse would likely have to rewrite his or her will to specifically include the former spouse and the annulment.

Example State Grounds For Annulements

Legal Grounds for Annulment in New York

New York recognizes the following legal grounds for annulment in New York:

• Void marriages — New York law recognizes that some marriages are void at the very beginning, such as in the case of incest or bigamy. However, a spouse must still petition the court to annul the marriage to make the determination that it is void.
• Voidable marriages — In contrast, other marriages may be voidable, meaning that a spouse can choose whether to stay in the marriage or not. If too much time elapses between the time of discovering the ground that makes the marriage voidable and the legal action to annul the marriage, the ground may be considered waived and annulment may no longer be an option.
• Fraud — Fraud is considered one of the grounds under New York’s voidable marriage ground for annulment. Fraud is defined in New York as the intentional deception to induce the aggrieved spouse to marry. The misrepresentation must be substantial in nature. The aggrieved spouse must prove the fraud occurred prior to the marriage and discovered it after the marriage with the help of a witness or other external proof even if the other spouse admits to it. There is a three-year time limit to assert this ground for annulment.

Legal Grounds for Annulment in Nevada

Nevada recognizes legal grounds for annulment, such as:

• Void marriages — Similar to New York law, Nevada law recognizes that some marriages are void at their inception. In Nevada, this includes marriages entered into as a result of lack of consent through underage, intoxication, or insanity, incest, or bigamy.
• Fraud — A marriage based on fraud is voidable, but in order to annul on these grounds, Nevada law requires that the spouse separate from the other spouse as soon as he or she learned about the fraud.

Nevada law does allow a couple who was married in the state who are not residents of the state to get an annulment in Nevada. However, if spouses who live outside of Nevada want an annulment and they were not married in the state, they must first establish the residency requirement of six months before petitioning for an annulment.

Legal Grounds for Annulment in Arizona

Arizona recognizes legal grounds for annulment as:

• Bigamy
• Underage marriage
• Spouses who have a blood relationship
• Lack of consent due to intoxication
• The absence of a valid marriage license
• Absence of mental or physical capacity to enter into marriage
• Refusal or inability to consummate the marriage
• Duress
• Fraud or misrepresentation