Generally, to end a marriage, you must get a divorce. But under some circumstances, you can ask a court to invalidate your marriage and grant an annulment.
Every state has different legal rules about when you can ask for an annulment and different processes for getting one. This article describes some common requirements and provides general information on how to get an annulment. However, if you want to know the specifics in your state, consider discussing your particular situation with an attorney.
What is an annulment?
In an annulment, one spouse claims their marriage was invalid at its inception.
Rather than ending a marriage, if a court grants your annulment, it retroactively voids your marriage. This places both parties in the position they were in before the marriage.
What is the difference between an annulment and a divorce?
In a divorce, both parties agree that the marriage was valid at its inception. However, something occurred during the marriage to cause the relationship’s demise. Since marriage is a legal relationship, the couple needs a court to declare that the relationship is over.
In an annulment, one or both parties believe the marriage was never valid. This means that when they entered the marriage, there was some legal reason why the marriage couldn’t legally begin. Rather than ending a marriage, they’re essentially asking to void the marriage completely.
Why get an annulment instead of a divorce?
Some people want an annulment because they believe there’s a social stigma about getting a divorce. Others feel their religion or culture will have an issue with a divorce as opposed to an annulment.
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Annulment requirements
Most states presume that a marriage is valid, so the requirements for an annulment are stricter than for a divorce. Annulment requirements vary by state, but below are some general rules.
Grounds for an annulment
Most states require you to allege and prove one of the law’s listed grounds to request an annulment. These reasons are relatively limited because the law sees annulment as an extreme measure.
Every state’s grounds for an annulment are different. Below are some of the most common ones:
- Fraud: One spouse lied about an important or material fact of the marriage, failed to tell the other an important fact (like that they couldn’t have biological children) or, in some states, hid a prior divorce.
- Coercion or duress: Threatening a spouse into entering the marriage.
- Under the influence: The person is under the influence to the extent that they can’t legally consent to marriage.
- Bigamy: One spouse has a living spouse when they marry a second spouse.
- Consanguinity: The spouses are closely related by blood.
- Lack of capacity: One spouse lacked the mental capacity to enter into the marriage relationship at the time of the marriage. Note that if the incapacitated spouse remains in the marriage after they regain their capacity, they may not be able to use this as a reason for the annulment.
- Force: When a spouse marries under force or threats of force. The innocent spouse must leave the marriage once the threat has passed to use this as a ground for annulment.
- Underage: One spouse wasn’t of the legal age to marry.
- Impotence: One spouse is incapable of sexual intercourse.
Waiver of grounds
Even if you have grounds for an annulment, in some cases you may waive those grounds through your actions.
For example, if your spouse lied to you about their ability to have children, you may meet the requirements for the fraud ground. However, if you discover this information but continue to stay in the marriage, the law treats this as if you consented after the fact. In that case, you can’t use fraud as a ground for annulment.
The same can be said about the grounds of coercion or force. If someone threatened you into marriage, you might have grounds for annulment. However, if you stay in the marriage once the threat passes, the court will find that you waived the ground for annulment.
Time limit for filing an annulment
Some states have a deadline for when you must file an annulment case, and some states have multiple possible deadlines depending on the reason for the annulment.
For example, in Colorado, you have to file for an annulment based on fraud, duress or incapacity within six months of the marriage. And for an annulment based on one spouse being underage, you have two years to file.
On the other hand, some states, like New York, have no deadline to file for an annulment. As long as you have grounds, you can seek an annulment no matter how long you’ve been married.
Annulment process
Once you have a legal reason for an annulment, the process is similar to the divorce process.
1. Decide whether to hire an attorney
Just as in an divorce, important rights are at stake in an annulment. Many people find it beneficial to hire a lawyer to protect their interests, advise them of their options and represent them in negotiations and in court.
2. File the paperwork
You typically file paperwork in the county where you or your spouse lives. Your annulment petition should state the reason for the annulment and address how you want any issues, such as property division, to be resolved.
3. Serve the papers
You then must serve your spouse with annulment papers in whatever way your state’s law requires. This typically means personal service by a person 18 or older who isn’t you. Many people hire a process server or local sheriff for this task.
4. Wait for a response
After your spouse receives your petition, they have a certain amount of time to respond by filing either a motion or an answer in court. The time varies depending on the state, but it’s typically somewhere between 20 and 30 days.
5. Mediation
Depending on your state, you may be required to attend mediation to attempt to reach a resolution on some or all the issues of your annulment petition. You may also choose to attend one or more mediation sessions to try to negotiate a settlement with your spouse.
Mediation is a form of alternative dispute resolution in which a neutral third-party mediator helps you and your spouse try to reach an agreement. The mediator isn’t a decision-maker; rather, they help you talk through the issues you’re facing and suggest possible resolutions.
If you can reach an agreement during mediation, you and your spouse sign a settlement agreement. An attorney submits the settlement to the court for approval, along with any other documents needed to finalize your annulment.
Mediation can save significant time and money compared with taking your case to trial. Even if you can agree on only some issues, it can cut down on discovery and litigation costs.
6. Discovery and litigation
If you and your spouse can’t reach an agreement, your case proceeds through the litigation process. This may include discovery procedures—such as exchanging documents, deposing witnesses and answering questions under oath—for both sides to gather information. You may also need to make several court appearances to resolve any disputes that may arise in the discovery process. For example, if your spouse refuses to respond to your discovery requests, you may need to go to court to compel them to comply.
You can continue negotiating with your spouse during this time up until trial. Sometimes the information you gather through the discovery process can help you reach a settlement outside of court.
7. Trial
If you don’t resolve your case, it proceeds to trial. A judge examines all the evidence in the case and decides whether to grant the annulment. They also decide any related issues, such as property division, child custody and child support.
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Obtaining an annulment when the other party doesn’t respond
Sometimes people lose contact with their spouse or their spouse doesn’t respond to the annulment papers in the time period set by your state law. If a situation like this happens, you can request a default annulment.
For a default annulment, you must prove that you served your spouse properly. Generally, you do this by filing an affidavit completed and signed by the person who served your spouse, stating how they delivered the papers to them. Then, sometimes, the court requires a brief hearing for you to show that you meet the basic requirements for an annulment. After this, the court can grant the annulment, even though your spouse never responds or appears in the case.
What is the cost of an annulment?
Because you have to address many of the same issues, the cost of an annulment is typically similar to the cost of a divorce, which can amount to thousands, or even tens of thousands of dollars.
For an annulment, you need to pay your state’s filing fees, which vary depending on the state and sometimes county where you file. Most courts currently charge between $200 and $400.
Other potential costs you may encounter include:
- Service fees
- Discovery costs
- Expert witness fees
- Attorney fees
The total cost of an annulment depends on how quickly you resolve your case. If you can reach an agreement and settle out of court, the cost of your annulment will be less than going to trial.
When to speak with an attorney
Annulments can be complicated. If you’re considering one, talking to an experienced lawyer can help you decide if this is the right path for you. They can discuss all of your options and the legal requirements for an annulment in your state. With that information, you can choose the best way to proceed given your situation and goals.
