Annulment vs. Divorce: What's the Difference?

When people get divorced, society still recognizes them as having been married. When a couple gets an annulment, society treats them as if the marriage never existed. The union wasn't a legitimate or legal marriage.

Divorces and annulments both have the same effect — they dissolve the marriage. Where they differ is in how they view the marriage.

This article explores the legal differences between annulment, divorce, and extrajudicial religious annulment.

The Difference Between Annulment and Divorce: An Illustration

To understand the differences between annulment and the divorce process, look at these two hypothetical situations.

Couple A decided to call it quits after five years of marriage. The union was valid when they got their marriage license, but now they wish to end it.

Depending on the marital property laws of their state, their combined assets and liabilities will be divided equally or equitably. One spouse may pay alimony to the other. A divorce settlement determines child support, child custody, and visitation. A judge will decide if the couple can't agree on the terms.

All states recognize no-fault divorce. But only 17 states are true "no-fault" divorce states. A no-fault divorce does not need the filing spouse to prove the other spouse did anything wrong to end the marriage. A no-fault divorce could claim irreconcilable differences as a reason for divorce. In fault divorces, spouses file a divorce based on a ground determined by state law.

Couple B was happily married for several years until the wife found a demand letter seeking child support payments from her husband. He left his first family a year before she met him. She had no idea he was married or that he had children.

Since he misrepresented or concealed important information, she petitioned for annulment in family court, providing evidence of his concealment or lie. The court agreed, declared the marriage null and void, and the two parties went their separate ways as if they were never married in the first place.

If Couple B had children together, the courts would still go through the child custody, visitation, and support process. Given the father's misrepresentation, the court would probably be more sympathetic to the mother in this scenario. But, the focus would still be on the best interests of the child(ren). The couple's property and debts may be subject to property division, but there are no specific rules since the granting of the annulment means the marriage never legally existed.

The main difference between divorce proceedings and annulments is the conclusion. Divorce ends a legal marriage. An annulment says that the marriage was never legal.

Civil Annulments

Civil annulments are a form of relief for people in situations in which they would never have married. A person must have a good reason to get one. There is no such thing as a no-fault annulment case; there must be legal grounds, such as:

  • Fraud or misrepresentation: One of the spouses lied about something significant
  • Bigamy: One of the spouses is already legally married to someone at the time of the marriage
  • Concealment: One of the spouses hid a major fact, such as a felony conviction
  • Misunderstanding: For instance, the spouse was unaware they had not finalized a prior divorce.
  • Impotence: One of the spouses is incurably impotent, and the other spouse didn't know
  • Incest: The spouses are too close in familial relation to marry
  • Mental incapacity: Either or both parties lacked the mental capacity to consent or were forced into the marriage
  • Underage marriage: Either or both parties were under the legal age of consent and without parental permission

Often, a party discovers these conditions early in the marriage, so there is no need to divide property or decide on child custody. But most state laws do have laws governing the annulment of a long-term marriage. Most state laws have time limits on when you can file. This is usually a period of time required to file after discovering the condition.

If you have children from an annulled marriage, these children are not considered illegitimate. This distinction is essential compared with children born out of wedlock, considered "illegitimate." In the past, these children were not entitled to the same inheritance rights as other children. They were also not eligible for federal benefits like automatic naturalization unless a court of law legitimized the child.

In the 1970s, the Supreme Court found that it violated the 14th Amendment of the Constitution to discriminate against children based on the marital status of their parents.

Religious Annulments

A religious annulment or "declaration of nullity" is neither binding on the courts nor a substitute for a legal annulment. The grounds for getting a religious annulment are a matter of church law, not civil law.

More Questions About Annulment vs. Divorce? Speak with a Family Law Attorney Today

Legal annulments must be clarified, including when they are available and under what circumstances. Each state has different rules, and not all people seeking to annul their union will be able to do so. Find out more by getting legal advice from a family law attorney experienced in annulment and divorce cases and get some answers and options to help you move forward.

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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.

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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.

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