Many people who are considering ending their marriage don’t know where to start. Although it may feel like there’s an endless list of decisions to make, in most states, the first step is to determine whether a divorce or an annulment is best for your situation. Filing for a divorce and asking a court for an annulment both legally end your marriage. However, each process is best suited for certain circumstances. Additionally, each has unique legal requirements and processes.
This article breaks down annulment vs divorce in detail to help you better understand your possible options. It explains the legal requirements and procedures of each as well as common reasons that people pursue one or the other.
Note that every state has different requirements for annulment and divorce, so speak with an attorney in your state for more precise information.
Annulment vs. divorce
The main difference between annulment and divorce is that, with an annulment, you claim the marriage wasn’t legal or valid from the moment you said, “I do.” Because of this, if the court grants an annulment, it retroactively voids the marriage—it’s as though you were never married.
But after a divorce, you and your ex may deal with the decisions you or a judge made about issues such as property division, alimony and child support and custody. Depending on cultural differences, you may face social or religious issues as well.
Let’s dig into annulment and divorce more so you can better understand.
What is an annulment?
In an annulment, one of the parties claims that the marriage was invalid at its inception. Requesting an annulment means they’re asking the court to declare the marriage null and void. If a court agrees and grants an annulment, legally, it’s as if the couple was never married.
Because of the extreme result of an annulment, most state laws strictly limit the reasons for requesting one, and courts examine the basis for the request very closely.
Some common reasons someone may seek an annulment include:
- They entered the marriage due to fraud or coercion
- One spouse was under the influence and unable to consent to marriage
- One spouse concealed a prior divorce
- They entered the marriage under threats or by force
- One or both spouses were under the legal age for marital consent;
- The spouses are closely related
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Time limit to annul a marriage
Some states have a time limit to file for an annulment. However, most states require a spouse to make the request as quickly as possible after the circumstances that caused them to enter the marriage end.
For example, if one spouse entered the marriage under the threat of force, they must file for an annulment once the threat ends. If they continue to live in the marriage for years, the court is far less likely to grant the annulment.
Proof required in an annulment
For an annulment, generally the filing spouse must provide credible proof of the circumstances that they claim cause the marriage to be invalid.
For example, if they claim their spouse lied about a prior marriage or divorce, they must bring proof of that prior marriage to court. They also need to prove that the spouse lied about this matter.
What is a divorce?
When a couple decides to divorce, although they may not realize it, the spouses are acknowledging that their marriage was legal and valid when they entered it.
And because marriage is a legal and social contract, the couple must go through a specific process (that is, divorce) to officially end their union.
Fault and no-fault divorce
Generally, spouses need a legal reason (otherwise called a ground) for divorce. Every state recognizes a different set of grounds for divorce. However, most states recognize fault and no-fault divorces.
Fault-based divorce: A fault-based divorce is when the filing spouse blames the other spouse for the marriage’s end. Some common fault-based grounds for divorce include:
- Physical or mental abuse
- Confinement to a mental hospital for a certain period
- Imprisonment for a certain period
- Drug or alcohol abuse
Some states have additional fault-based grounds. Other states, like Illinois, have eliminated all fault-based grounds for divorce and only permit couples to use a no-fault ground for divorce.
No-fault divorce: In a no-fault divorce, neither spouse has to prove that the other caused the relationship breakdown. Instead, they must claim that the marriage is no longer functioning and there’s no hope of reconciliation. Typically the spouses cite irreconcilable differences or insupportability as the ground for divorce.
The thinking behind no-fault divorce is that, since nobody is assigning blame, the process becomes less contentious and more amicable.
Proof required in a divorce
The amount of evidence you need for a divorce depends partly on the type of divorce.
For a no-fault divorce, the filing spouse typically only needs their testimony that there’s no hope for reconciliation in the broken marriage. In a fault divorce, however, the filing spouse needs to gather and provide evidence to support their claim of the ground(s) they name as the reason for their divorce.
In many divorces, the spouses must provide evidence of their assets, finances and debts. Every state divides property in a divorce a little differently. However, all state laws require courts to distinguish between separate property and marital (or community) property during a divorce.
Generally, marital property is all property that either spouse acquired during the marriage, including income and debts. Separate property is property owned by a spouse before the marriage, as well as individual gifts or inheritances each received during the marriage.
Lastly, if the spouses share children, they have to provide evidence about their relationships with the children. They also have to develop a custody and parenting time plan that’s in the child’s best interest.
If the spouses can’t reach an agreement on property division or child custody and support, a court will hear the evidence and decide on these issues.
Procedure for annulments and divorces
The procedures for filing for an annulment and divorce are similar. Typically, the filing spouse prepares a divorce complaint or petition, stating the ground for the divorce or the reasons they believe the court should annul a marriage. In most cases, the spouse files these papers in the same court and follows state laws to serve the papers to the other spouse. The other spouse then has a certain period to respond to the papers.
After that, the court often sets several court dates and directs the parties to exchange documents and other pertinent evidence. (An annulment may require only a single hearing.)
Sometimes, the court sends the spouses to mediation to try to resolve the case without a trial. In mediation, an independent third party—called a mediator—facilitates discussions between the spouses to help them reach a compromise on any issues where there’s conflict. This can include spousal support, property division, child support, child custody and more.
If mediation is unsuccessful, the spouses go to trial. A judge hears evidence on the grounds for divorce or the reason for annulment. They then decide on the divorce or annulment as well as property and child custody issues, if relevant.
Why get an annulment vs. a divorce?
Different people decide to get an annulment rather than a divorce for different reasons. That said, some issues that commonly cause couples to choose annulment include finances, children and social stigma.
In a divorce, a court determines each spouse’s separate property and their marital property, which is property the spouses hold together. Property includes houses, vehicles, retirement accounts, investments and more.The court then divides the marital property per the state’s law.
Some states require an equitable (fair) distribution, while others require an equal distribution. In a fault-based divorce, often the innocent spouse receives a greater share of the property.
On the other hand, in an annulled marriage, the marriage is legally invalid. That means there’s no marital property for a court to divide. Instead, all property either party acquired during the marriage is separate property.
This can be complicated if the spouses bought property together. They may need an attorney to help them negotiate how to split certain property or to help one spouse make the case for a portion of the other’s property.
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Whether a marriage ends by divorce or annulment, if the spouses share children, they need to address custody matters. Depending on the state where they divorce, custody proceedings may have additional steps if a marriage is annulled. A local family law attorney can discuss how to proceed in this situation.
Even today, some people may be concerned that others will look poorly on them if they divorce. Additionally, certain cultures and religions don’t allow divorce or stigmatize those who get a divorce.
Marble can help
Divorces and annulments can be legally complicated and confusing. If you’re trying to choose between a divorce or an annulment, a local legal professional can advise you on your state’s law and help you make the decision that best suits your life.
The experienced team at Marble Law can help you find professional, effective and cost-efficient legal counsel in your area. Contact us today to set up a free 15-minute call so we can connect you with an attorney to help with your divorce or annulment.