Annulments - Overview
Today, annulments of marriage are rare. But they are still available if you meet certain grounds for annulment. The idea around civil annulment is that the marriage was never legal. This means that the marriage never existed in the eyes of the law. In legal terms, an annulled marriage is "void" or "voidable" and is sometimes called a "nullified" marriage.
This is different from a legal separation in which the marriage is legal, and the parties need to get a divorce. The legal separation can address child support and child custody arrangements while a divorce is ongoing. You should seek legal services to understand which process would be best for you.
Canceling a marriage contract can have time limits. This depends on the state where you live and your reason for seeking an annulment. There is generally no waiting period required to file for an annulment. Read on to learn more about what's needed to get an annulment and how it can affect you.
Civil Annulment or Divorce?
A civil annulment is different from a divorce in that a divorce terminates a previously valid marriage. Remember that the key to nullifying a marriage is that it was never valid. In an annulment case, the court may still award custody of children from the marriage. The court may also order the payment of child support and financial support of a party. A judge may still divide property purchased during the marriage unless the couple has a prenuptial agreement.
A couple may seek a religious annulment from their church, which will still leave them legally married civilly. You will not be able to marry another person. You must seek a legal civil annulment or divorce to end the marriage.
Legal Grounds for a Civil Annulment
Courts will order a marriage annulled or void in one of the following situations:
- Mental illness, "insanity," or developmental disability: If one spouse is mentally ill, "insane" as defined in the law, or lacks mental capacity because of a developmental disability, they could not knowingly and willingly consent to the marriage. Here, the court grants an annulment on the theory that marriage is a consensual relationship, and most mentally ill or developmentally disabled people cannot give legal consent. Both parties must understand that they will be married and what this will mean.
- Temporary "insanity": If temporary or periodic "insanity" is claimed, the affected person's condition at the time of marriage will decide if they possess the legal capacity to marry. The court will not annul a marriage if it was entered into during a "lucid" interval.
- Fraud or misrepresentation: If one of the parties did not tell the truth or deliberately misrepresented information to trick the other party into marriage, then the court can annul the marriage because of fraud or misrepresentation of the facts. For example, if one of the parties only wanted to get citizenship or lied about being able to have children.
- Lack of consent or duress: If a person is compelled to marry another under duress, the threat of violence, blackmail, or coercion, the court may annul the marriage. Again, the theory is that marriage is a consensual relationship. Forcing someone to marry under threat does not mean the person consents. Actual threats of serious violence are needed.
- Incapacity to give consent: Annulment may be possible if either spouse was under the influence of drugs or alcohol at the time of the marriage. It may also be possible if it is shown that there was such intoxication at the marriage ceremony that one spouse was not able to understand the nature of the marriage contract and its consequences. Some states will not give an annulment or void the marriage if the parties continue to live together as a married couple after the effects of the intoxication have worn off.
- Inability to consummate the marriage (or "impotence"): To get an annulment for impotence, or the inability to have sex, the person seeking annulment must prove that the other spouse was permanently impotent when they entered marriage. They must also prove that the person seeking annulment did not discover the fact until after the marriage. A judge may deny nullification if the spouses remain in the marriage after discovering the impotence.
- Lack of parental consent for an underage marriage: Most states have age requirements for marriage. Generally, persons under 18 must have parental consent to marry as they are not of legal age to consent. If an underage person obtains a marriage license without approval, the marriage is subject to annulment.
- One of the people is already married (bigamy): A marriage is void when it is entered into before one of the parties has finalized their divorce proceedings.
- Incestuous marriage: All states prohibit marriages between parents and children. This includes grandparents and grandchildren; siblings, either half or whole blood; uncles or aunts and nieces or nephews; and in some states, first cousins.
- Mock marriages: A marriage entered into with no intention of being real is a mock or fake marriage. This type of marriage is subject to annulment. However, suppose the couple agrees to marry for a specific goal, such as legitimizing a child. In that case, most courts will see the marriage as valid and not grant an annulment.
- Marriage otherwise prohibited by law: Your state may have other grounds for annulment. You may read about your state's laws in FindLaw's section on State Annulment Laws.
Effects of Annulment
Once the court annuls your marriage, you lose the rights you enjoyed as a married person. But you are also free to marry another person without going through the divorce process. Legal rights that you can lose as a result of annulment include:
- Marital property rights: If you are not the legal owner of the house, your former partner may sell it or lease it without your consent. The same is true of other properties your former spouse owns that you do not also own. State laws may allow the property division of assets obtained during the marriage.
- Inheritance rights: You are no longer legally entitled to a share in your former partner's estate if they die unless they include you in their will.
- Spousal support, maintenance, or alimony: Courts may not award any financial support to you. However, the court may grant child support.
- Children: Even if a marriage is annulled, the children born during the marriage are legitimate.
Need Help With an Annulment? Call an Attorney Today
Each state has its own annulment laws, timeliness rules, and forms. There may also be residency requirements to meet or that will determine where you file for annulment. Finding the right family and divorce law attorney at the beginning can make this process as painless as possible. It can help you get the settlement you're allowed under the law. Consider calling a local family law attorney to understand how to move forward and get the right legal advice.
Can I Solve This on My Own or Do I Need an Attorney?
- You may not need an attorney for a simple divorce with uncontested issues
- Legal advice is critical to protect your interests in a contested divorce
- Divorce lawyers can help secure fair custody/visitation, support, and property division
An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.