Annulment vs. Divorce: What's the Difference?

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

When people get a divorce, they are still recognized as having been married. When a couple gets an annulment, they are treated as if the marriage never existed. In fact, it did not. The union wasn't legal or legitimate.

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

The Difference Between Annulment and Divorce: An Illustration

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

Couple A decided to call it quits after five years of marriage. The union was valid when they obtained 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 either equally or equitably. One spouse may pay alimony to the other. Child support, child custody, and visitation will be determined. If the couple can't agree on the terms, it may be decided by a judge.

Couple B were happily married for a number of years until the wife found a demand letter seeking child support payments from her husband. It turns out, he left his first family a year before she met him. She had no idea he was previously married, or that he had children.

Since he misrepresented and/or concealed important information, she filed a petition 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. The court would probably be more sympathetic to the mother in this scenario, given the father's misrepresentation, though the focus would still be on the best interests of the child(ren).

Civil Annulments

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

• Fraud or Misrepresentation: One of the spouses has lied about something, such as age or already being married.
• Concealment: One of the spouses hid a major fact, such as a felony conviction.
• Misunderstanding: For instance, a spouse did not realize that a prior divorce had not been finalized.
• Impotency: 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.
• Lack of Consent: One or both parties were underage and without parental permission, lacked mental capacity to consent, or they were forced into the marriage.

Often, these conditions are discovered early in the marriage, so there is no need to divide property or decide on children custody. However, most state laws do have laws governing the annulment of a long-term marriage. Check your state's laws.

If you do have children from an annulled marriage, these children are not considered illegitimate. This is not as important a distinction as it has been in the past, when children born out of wedlock were considered “illegitimate” and were not entitled to the same inheritance rights as other children and were not eligible for certain federal benefits like automatic naturalization unless the child had been legitimized in a court of law. However, in the 1970s, the Supreme Court found that it was a violation of the 14th Amendment of the Constitution to discriminate against children based on the marital status of their parents.

Religious Annulments

A religious annulment is not binding on the courts and is not a substitute for a legal annulment. The grounds for obtaining 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

There are many misconceptions about legal annulments, including when they are available and under what circumstances. Each state has different requirements and not all persons seeking to annul their union will be entitled to do so. Find out more by contacting a family law attorney experienced in annulment and divorce cases and get some answers and options to help you move forward.