Legally Uncoupling: Annulment vs. Divorce - How The Two Differ & What You Should Know
A marriage can be legally dissolved in one of two ways - by divorce or by annulment.
Given the nature and focus of my business, I fairly regularly find myself discussing divorce and elucidating the divorce process for others. (As a quick reference for anyone who might be interested, here is an article I wrote about the divorce process and the various options that one has for getting divorced, and here is a free online course I recently created on “How to Get Divorced”).
Today, however, I’d like to touch on a topic that comes up less frequently, but is still important to understand - the concept of annulment.
I. Annulment vs. Divorce
So to start, what exactly is an “annulment” in the context of marriage, and how does it differ from divorce?
Both a divorce and an annulment are made by way of a legal decree. However, whereas a divorce decree serves to legally end or dissolve a valid marriage, an annulment declares the original marriage contract (and thus, the marriage) null and void.
In other words, while someone who goes through a divorce was once legally married and becomes a divorcé(e) upon the dissolution of that marriage, someone who gets an annulment receives a declaration that, effectively, they were never legally married. Their union has been deemed “invalid” by the court, and it’s as if the marriage never happened.
II. How do you get an annulment? …And when can you get one as opposed to a divorce?
Either member of a married couple can file for an annulment with their state court. The decree will only be granted on certain grounds, however. (And, contrary to popular belief, the length of the marriage is irrelevant when it comes to getting an annulment).
The specific requirements vary on a state-by-state basis, but there are some commonalities nationwide. Generally, in order to qualify for an annulment, one of the following criteria must be proven:
|Bigamy||either spouse was already legally married to another person at the time their marriage was entered into|
|Duress||either spouse was forced or threatened into the marriage and entered into it under duress|
|Fraud||either spouse agreed to the marriage based on a lie or misrepresentation made to them by the other|
|Inability to consummate||either spouse was impotent/physically incapable of having sexual relations during the marriage|
|Mental illness||either spouse was legally incompetent (mentally ill or emotionally disturbed) at the time the marriage was entered into|
|Mental Incapacity||either spouse was under the influence of alcohol/drugs at the time of the marriage, rendering them unable to make informed consent|
|Prohibited by law (Incest)||the spouses are related by blood, making the marriage incestuous|
|Underage||either spouse was too young to enter into marriage (17 years old or younger) without parental consent or court approval and lacked such consent/approval|
If the filing party sufficiently proves that one of the above grounds exists, then the court will issue a decree declaring the marriage annulled.
III. Why might One prefer to get an annulment instead of a divorce?
Provided your situation qualifies for an annulment, obtaining one is generally preferable to getting a divorce for several reasons:
1) It affords the same “benefit” of divorce, in that it allows each person to legally marry someone else, but avoids the high level of complication and complexity that can commonly be associated with a divorce.
2) It bypasses the division of property process that must be dealt with in a divorce.
- Oftentimes in an annulment scenario, any property/assets/debt/etc. gets assigned back to its rightful owner, as it had been allocated before the marriage.
3) It serves to invalidate a prenuptial agreement (if you had one).
- Prenups only apply to the dissolution of a marriage. And since an annulment deems your marriage invalid, any prenup is also rendered invalid, thereby releasing you from its terms.
4) It enables you to sidestep any potential stigma associated with being a divorcé(e) (which I personally feel is bullshit anyway, but I digress).
- If you’re able to secure an annulment, it effectively means that an official marriage union never existed. So you won’t have to deal with any religiously-imposed restrictions barring you from marrying again, etc.
Ultimately, you may not have the option to get your marriage annulled. And, even if you do, whether you choose to pursue an annulment versus a divorce can be a very personal decision that will often be impacted by your state’s laws.
If you’re unsure of whether your situation could qualify for an annulment, I would recommend consulting a family law attorney for guidance. (I offer free initial consultation calls as well and am always happy to speak with you if you’re feeling lost).
More than anything, please don't feel overwhelmed. Know that whichever route you take to legally uncouple from your spouse, you can and will get through it. And if you need support or guidance along the way, please reach out. You don’t have to navigate this process alone.