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Annulment of Marriage

The dictionary describes the annulment definition as an act that voids or cancels an agreement, decision, or result. In a legal context, however, a marriage annulment or an annulment of marriage is a legal procedure that dissolves the marriage bonds between two people as if they had never existed in the first place. The term is often confused with the word “divorce” since both result in the end of a marriage, yet they use two completely separate procedures to do so.

In other words, the main difference between divorce and annulled marriages is that a divorce terminates a marriage, but recognizes that the marriage existed. With divorce, there will still be a record of both the marriage and the divorce. With an annulment, on the other hand, while a record of the marriage and its annulment will remain in the public archives, the law views the couple's marriage as if it never legally occurred.

In addition, the grounds to annul a marriage are not the same as those to obtain a divorce decree. Typically, it is much harder to annul marriage because an annulment is only granted under certain circumstances. These grounds will be discussed in further detail below.

Thus, if you and your spouse are considering having your marriage annulled, then it may be in your best interest to speak to a local family law attorney first to find out whether it is even possible. Again, annulment is not always available in every situation. Also, some jurisdictions have such strict regulations on when an annulment is permitted that you may need to get a divorce instead. An attorney can help you with the divorce process as well.

Difference Between Annulment and Divorce

Both an annulment and divorce disunites the marriage, but the long-term effect are different. As mentioned above, an annulment places the parties in the position they were in before marriage. Unlike a divorce which stays on the parties records, only the paperwork filed to get the annulment stay on the court records. 

Basically, there is a record of the court filing for the annulment, but it does not follow you on your personal records like a divorce. Additionally, all property is given back to the original owner and the former spouse has no right to a portion of property clearly traceable to the other. 

However, the longer the couple is married, the more likely they are to acquire joint/ community property. This makes it harder for the court to trace the property to the owner. Community and joint property would be any assets the couple purchased together; joint assets and debts accumulated during the marriage are divided equally. On the other hand, in some states a divorce will consider all property acquired during the marriage community property no matter how it is labeled by the couple. 

How Soon Should I Seek an Annulment?

Most couples seek an annulment not long after getting married.  However, there is no set time for when an annulment can be sought. This means that the marriage could've have been for a few months or years. However, keep in mind the time frame will affect the way the courts divide the property, assets, and debts acquired between the parties during the marriage. This is discussed in more detail below.

Is the Couple Still Bound to Legal Contracts?

Depending on the type of contract signed during marriage, the parties may still be bound to the terms and conditions once the annulment is finalized. For example, while an annulment releases the parties from the terms of a prenuptial agreement, any joint contract signed together for loans are still in place. 

An annulment only severs the marriage contract, not incidental outside legal contract formed as a result of the marriage. Thus, if the couple purchased a building together as a result of their marital status and they both signed the mortgage for the building, they are still responsible for the payments. 

How Does a Person Obtain an Annulment?

In order to obtain an annulment, the parties will need to comply with the procedural requirements set out in the laws of the state in which they were married. In general, however, the annulment process will usually involve taking some of the following steps:

    • First, the couple must make sure that they are eligible to file a petition for an annulment. As mentioned, an annulment may only be sought for specific reasons. Those reasons will be discussed in greater detail in the section below.
    • Next, whichever of the parties is seeking the annulment will need to fill out the forms for an annulment, which can be found by visiting their local family courthouse either online or in person. Again, each state will have different forms to complete this process.
    • Once the forms have been filed, the petitioner will need to serve them on the other party and then file a certificate of proof of service with the same family court wherein they filed the initial annulment forms.
    • After the other party files a response to the petition for annulment and assuming there are no counterclaims, then the court will schedule a date to hold a hearing during which the annulment will be discussed.
  • Depending on the facts of a particular case and/or the laws of a specific jurisdiction, the parties will likely be asked to present supplemental evidence to prove why the annulment should be granted. If no further details need to be discussed, then the court may sign and issue a “Decree of Annulment,” which then must be filed with the court clerk to finalize the annulment process.

In addition, some states have a statute of limitations that will prescribe how long a couple has to have their marriage annulled. In contrast, other states such as New York, may not place any restrictions on how long a couple has to annul a marriage.

Grounds for Annulment

As previously mentioned, there are certain annulment requirements that must be met before a couple can get their marriage annulled. In other words, just because a couple is unhappy with their marriage and/or choice of spouse, does not make them eligible for an annulment.

Accordingly, some reasons that may qualify for an annulment include the following:

    • Incest: Each state has enacted some version of a criminal statute that makes it illegal to commit incest. Incest is defined as a crime that involves establishing a sexual relationship between persons closely related by blood. Accordingly, marrying a close blood relative would violate state incest laws, which in turn, would provide grounds for an annulment since a marriage conceived by illegal means breaches general contract law principles.
    • Bigamy: Bigamy is the act of marrying an individual while that person is already married to someone else. In general, bigamy is considered a crime in nearly every state, with the exception of Utah where it is decriminalized. Like incest, however, bigamy remains one of the primary grounds to qualify for an annulment because it is illegal.
    • Coercion: In a marital setting, coercion may refer to when a person threatens or forces their partner to enter into a marriage. Similar to bigamy and incest, a marriage based on an act of coercion is illegal because it violates general contract law principles and therefore invalidates the marriage. In which case, the parties may file a petition to have the marriage annulled.
    • General fraud or misrepresentation: Marriages built upon fraud or misrepresentation will provide proper grounds to ask for an annulment. Although there are many variations of fraud, it typically occurs when one party convinces another to marry them by misleading them through false representations of facts that otherwise would have prevented them from initially agreeing to the marriage. 
        • For instance, if one of the main reasons a couple decides to marry is predicated on the fact that they will have children together and one of the spouses is knowingly deceiving the other spouse about their ability to have children, then the couple can seek to have the marriage annulled.
    • Mental impairment: One of the primary requirements of entering into a marriage is that both parties must possess a basic understanding of the concept of marriage as well as must both voluntarily and knowingly consent to the marriage. Accordingly, if at the time of the marriage one or both of the parties does not have the capacity to understand what marriage means, then this may constitute grounds for an annulment.
    • Age of consent: Each state usually has a statute that prescribes the minimum age requirements to enter into a marriage. Many states, however, will allow minors who fall below this age to enter into a marriage if they obtain consent from a parent, legal guardian, or the court. Thus, persons who enter into a marriage with a minor without the consent of one of those parties may have the marriage annulled.
  • Citizenship or immigration fraud: Immigrants who enter into a marriage solely for the purposes of obtaining a U.S. citizenship or a lawful permanent resident card are in violation of U.S. immigration laws. This type of marriage is known as a sham or green card marriage and is considered to be illegal. Therefore, parties deceiving the federal government for this very reason can have their marriage annulled.

Again, the requirements to have a marriage annulled will often vary based on both the laws of a particular state as well as on the circumstances surrounding a couple's specific request to have their marriage annulled.

What Happens When an Annulment is Granted?

After an annulment is granted, it will be as if the couple was never married. Depending on state laws, this means that items, such as property, assets, and finances, will be divvied up in accordance with state property laws. This may mean that separate property will be distributed to each respective owner, but it may also mean that shared property will have to be equally divided among both parties.

The couple will also need to figure out child support and/or custody arrangements since an annulment will act very much like a divorce in this manner. For example, if the couple conceived children during the marriage, then they will need to discuss how to raise them since they will still be considered parents and thus responsible for taking care of their own children.

What Happens to Debt Created for the Benefit of One Spouse by the Other?

Although state laws for annulment differ, the court will more than likely divide debts like this that was taken on by a spouse on behalf of the other equally. Essentially, an annulment's purpose is to restore the original balance fairly. Although, an annulment does not follow community property rules, this debt will be traced back to both parties. There is no definitive yes or no for this question, because the judge will ultimately decide what is fair.

Other Options Besides Annulment

Aside from an annulment, some other options that a couple may consider for terminating a marriage include:

  • Divorce;
  • Legal separation;
  • Dissolution of marriage;
  • Mediation; and/or
  • Couples therapy to see if they can resolve their issues.

Can I File for Annulment in the County where I Live or in the County where I was Married?

As previously mentioned, each jurisdiction has its own separate rules and requirements to file for an annulment. The reason for this is because state law governs issues related to marriage and divorce since they are closely related to contract law principles, which are also typically controlled by state law.

Although some states have specific residency requirements, most persons can obtain an annulment in the state where they live. Other states, however, may require the couple to return to the jurisdiction where they got married to obtain an annulment.

What If There Were Children Conceived or Born Prior to the Annulment?

Since there is no law that says a person needs to be married in order to have children, an annulment does not affect the fact that both parents will still be liable for taking care of their children. As such, an annulment will operate very similarly to a divorce in this situation.

For example, the parents will need to figure out a custody arrangement and visitation schedule. One of the parties (usually the noncustodial parent) may even need to pay child support to the custodial parent.

As with a divorce, the court must approve all agreements that the parents come to and will issue a final order that comports with the best interests of the child standard.

Does an Annulment Allow Post-Financial Support?

When the marriage is invalidated, all other financial obligations outside of child support would not exist. Thus, a former spouse does not have to pay spousal support. As mentioned above, an annulment does not reverse the obligation of child support. Any child conceived by the parties is still entitled to support. 

Legal Effects Associated with Annulment

As discussed throughout the article, once a marriage is formally annulled, the marriage will no longer be considered to be valid. In the eyes of the law, this means that it will be as if the marriage never existed. Thus, as is evident from some of the above sections, this will have an effect on how child custody is awarded and/or how courts divide a couple's property and assets.

Again, while every state has its own rules regarding the legal effects of an annulment, a court will typically try to restore the parties to the original financial status they held prior to entering the marriage. Thus, if state law allows for it, a judge can redistribute property to their rightful owners. On the other hand, if a state contains laws that prohibits judges from distributing marital property, then the couple will need to sort it out on their own.

Generally speaking, in all other instances, couples who are granted an annulment can expect the property to be distributed in accordance with their state's property or ownership laws. As mentioned, these can often be complex matters, and a person dealing with these issues may benefit from the assistance of a family law attorney.

How Can a Family Law Attorney Help Me with Annulment Issues?

Couples who are either seeking to have their marriage annulled or are having issues obtaining an annulment should consider hiring a local family attorney for further assistance immediately. An experienced annulment lawyer can assist with what is typically a complicated process, including making sure that you and your spouse are eligible for annulment.

For instance, your attorney will be able to ensure that you meet all of the requirements, such as the specific procedural guidelines to get a marriage annulled in your state, your state's statute of limitations, and the grounds as to why you are seeking an annulment. In addition, your attorney can answer any questions you may have about the process and can guide you through the next set of steps after the court issues a decree.

Lastly, if you are involved in a dispute over an annulment, your attorney will be able to provide representation in court as well.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.