Choosing Between Annulment and Divorce

There are two legal methods by which a marriage can be terminated. Divorce is, by far, the most common. For people who have religious objections to divorce or may feel there is still some stigma attached to it, an annulment may be an option. There are usually strict grounds which must be met to annul a marriage, and only a very small percentage of marriages will qualify for an annulment. Annulment vs Divorce procedures have many similarities but some significant differences as well.

Divorce terminates a valid marriage. Once the divorce is complete, the parties are single and "divorced." Annulment terminates a marriage that was never valid from day one. When a court annuls a marriage, it declares that the marriage is void. The parties are considered single and "unmarried" as though the marriage never occurred.

Many states have adopted no-fault divorce laws. In these jurisdictions, it is no longer required that one spouse establish grounds for divorce like adultery or mental cruelty. It is sufficient to say the marriage is irretrievably broken. Annulment, on the other hand, requires the person seeking it to allege and prove specific grounds. The grounds for annulment are fairly similar in each state.

Grounds for annulment typically include (1) marrying someone who was still married to another person, (2) being tricked into marriage or forced to marry under duress, (3) being so intoxicated by alcohol or drugs at the time of marriage that giving informed consent was impossible or (4) being too young to marry without parental or court consent. An annulment can also be sought if one party was mentally ill or failed to disclose important facts such as being impotent, having a venereal disease or having a criminal background. Marriages in which the parties are too closely related, such as being first cousins, can also be annulled in most states.

Consequently, news articles reported that actor Nicolas Cage had filed for an annulment of his 4-day old marriage with details sounding like something from the movies. He and his girlfriend were married in Las Vegas after a night of partying and drinking. They obtained their marriage license and were married the same day. In his annulment petition, Cage claimed they were both too drunk to fully understand they were getting married. Cage also claimed his girlfriend failed to disclose some unspecified past criminal activity. On its face, Cage's claim appears to meet two of the common grounds for annulment.

Annulments are most common in marriages of short duration based on circumstances as alleged in the Cage example or because one spouse quickly discovers something significant about a new spouse. However, simply because marriage is brief does not provide a basis, by itself, to annul the marriage. Some states have established time limits to seek an annulment. These range from six months to several years and often depend on the alleged grounds claimed for annulment.

In some states, even where a party has legitimate grounds to annul a marriage, continuing to cohabitate can exclude such grounds. For example, in Washington State, if one of the parties was under the age of 18 at the time of marriage and did not have parental or court consent to marry, that would be a ground for annulment. However, if the couple continues to live together after both are 18 years old, the ground no longer exists. Similarly, if one party claims the other person lied about something or threatened force to cause the marriage, continuing to live together once the lie is discovered or the threat removed eliminates those grounds as a basis for annulment.

While annulment treats a marriage as if it never existed, children produced by the couple are considered legitimate, and each parent is legally required to financially support the children. Legitimate children also have the right to inherit from both parents. Courts will often enter support orders and parenting plans with visitation arrangements which look similar to orders following a divorce.

Courts vary in how property is disposed of via annulment. Some courts, as those in Washington, will attempt to provide an equitable distribution to each party based on what was acquired during the marriage. Other courts, such as those in New Jersey, simply provide that each person keeps what is in that person's name and anything owned jointly is evenly split. The general intent of this method is to return people to the financial status that existed prior to the invalid marriage.

Depending on circumstances, particularly where the parties agree, annulments may often be obtained more quickly than a divorce. However, in some states, the procedure looks very much like a divorce and can be similarly lengthy. Consultation with an attorney is advised whenever considering annulment vs divorce to determine which process makes the most sense for your situation. If you have any questions concerning divorce vs annulment, phone the Peter Van Aulen, Esq. at 201-845-7400 today for a free initial consultation.