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Should I Get A Divorce Or An Annulment?

Should I Get A Divorce Or An Annulment

There are two ways to legally end a marriage in the Utah courts — annulment and divorce. An annulment is a legal procedure which cancels a marriage. Annulling a marriage is as though it is completely erased, legally, and it declares that the marriage never technically existed and was never valid. Like it never ever happened. Period.

A divorce, or legal dissolution of a marriage, is the ending of a valid marriage, returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding grounds for marriage annulment or divorce, certain requirements apply nationwide.

An annulment case can be initiated by either party in a marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

  • Bigamy – either party was already married to another person at the time of the marriage
  • Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress
  • Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other
  • Marriage Prohibited By Law – marriage between parties that based on their familial relationship is considered incestuous
  • Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage
  • Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent
  • Inability to Consummate Marriage – either spouse was physically incapable of having sexual relations or impotent during the marriage
  • Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues. Each state can have either a no fault divorce or a fault divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up. Many states now offer the “no-fault” divorce option, dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, fault divorce.

A fault divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state; however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:

  • Adultery – one or both spouses engages in extramarital relationships with others during the marriage.
  • Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.
  • Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence

Reasons for Divorce or Annulment

There are different reasons for pursuing a divorce versus an annulment. At the core, ending a marriage is generally because one or both spouses want to leave the union. But, a divorce, which is much more common, is sought when the parties acknowledge that the marriage existed, and an annulment is sought when one or both of the spouses believe that there was something legally invalid about the marriage in the first place.

Divorce: Depending on state laws, there may be evidence required in order for a court to grant a divorce. Generally, a no-fault divorce, in which both parties agree to end the marriage, is becoming common, although the divorcing couples may still have disputes about property, finances, child custody, and more that must be settled through court orders.

Annulment: An annulment ends a marriage that at least one of the parties believe should never have taken place. If the marriage took place despite unknown facts, such as a secret child, or even a secret illness, it may be a marriage that is voidable. An annulment can also end a marriage if the marriage was not legal to begin with, making it void. This might occur if issues such as bigamy or incest made the marriage illegal.

After a Divorce or Annulment

Legal experts explain that, among the differences between the two types of marriage dissolution, the marriage is never considered to have legally happened after an annulment. In simple terms, An annulment essentially turns back time so that the act of marriage never happened. The main benefit of annulment is the law treats the marriage as if it never existed. It’s over, and there are no further issues to deal with. Divorce, on the other hand, may mean involvement with your ex-spouse for years to come on issues such as support, property division and raising children. Annulment isn’t for everyone. Only a small percentage of those who are married can even qualify for one.


After a divorce, spouses are often entitled to a certain number of years of spousal support, alimony, or a portion of each others’ profits or property gained during the marriage. With an annulment, in contrast, the parties are not really considered to have been valid spouses and are not entitled to these same rights.

Length of Time of the Marriage

Often, people assume that a very brief marriage can be ended with an annulment due to the short duration. However, legal experts disagree. While many states will not grant an annulment after a maximum length of time, there is not an automatic annulment granted to end a marriage because the couple wants to end it after a short period of time. Annulments are only granted when the marriage is void or one spouse misled the other spouse regarding a material fact prior to the marriage. Annulments are granted based upon very limited statutory grounds such as fraud, duress, mental incapacity such as (intoxication), failure to consummate, and incidents which involve prohibited marriages such as bigamy or close blood relatives. The length of the marriage is irrelevant when it comes to annulments.

Both types of marriage dissolution can be fairly complicated from a legal standpoint, requiring costly and lengthy legal proceedings. Yet, either a divorce or an annulment can also be simple and low-cost if both parties agree to end the union without too many disputes or disagreements about how to do so.

Religious Rules

Many religions that have guidelines regarding divorce and annulment. Often, permission is granted by religious clergy or by written guidelines. Obtaining permission to have an annulment or a divorce from your religious leaders is usually a completely separate process from the legal process. The rules regarding divorce and annulment in your religion often determine whether one, both or neither of the partners has permission to marry again within the religion or in a religious ceremony or to participate in religious rituals. A court of law may consider your religious marital status but does not have to recognize the religious determinations when making rulings about spousal support, property disputes, or any other legal issues.

A family court judge may issue an annulment at the request of one individual, or at the couple’s mutual request. Generally, a judge will be inclined to grant the annulment request if the parties agree to an annulment, and to the reason(s) for why the annulment is sought, however, in many instances, only one party seeks an annulment. A party that seeks an annulment can do so by bringing an annulment action in family court. If the other person does not want an annulment or does not believe there are grounds for one, the judge will hold a hearing. At the hearing, the judge will consider evidence from both sides as to whether an annulment can be granted. Typically, these hearings are not held before a jury.

Annulled marriages are regarded as though they never existed. Therefore, courts faced with how to divide assets in an annulment situation attempt try to leave the couple in the same financial it was in before the marriage ever happened. This means that if the parties did not have any marital assets, the parties will each be left with whatever money or property they brought to the marriage with them on their own. Sometimes, couples obtain shared property or assets before the annulment. Courts must decide how the property should be divided. Generally, courts divide shared property, and shared debt, on an equitable basis, or equitably.

In equitably dividing assets and debt, courts look at the facts and circumstances in each case. Courts attempt to reach an equitable, or fair, resolution. A fair resolution for both parties involves taking each party’s specific needs (including financial needs) and circumstances into account. Generally, children born to a couple whose marriage is later annulled are considered legitimate. In other words, after the annulment, both parties to the annulled marriage are the legal parents of a child, just as they would be had the marriage ended in divorce.  If, upon annulment, there are child support and child custody issues, courts will generally apply the state’s laws regarding divorced couple child support and custody issues.

Generally, there is no period of time (e.g., three years, ten years) after the marriage by which an annulment must be sought. Practical considerations, however, might make obtaining an annulment earlier, rather than later, a prudent idea. The longer a party or couple waits or decides to request an annulment, the more complicated it becomes for a court to equitably divide assets and work out child custody and support issues. A party who brings an action for annulment later rather than sooner may have harder time presenting evidence. This is because, among other reasons, memories fade, details are forgotten, and witnesses may die or become unavailable, with the passage of time. Also, many people seek an annulment to escape a social or religious stigma of divorce. Delay or wait in obtaining an annulment is, in effect, a delay in a person’s ability to remarry, whether they wish to do so consistently with their faith or for other reasons unique to the individual.   

How to Be Eligible for an Annulment

While a divorce terminates a legal marriage, an annulment means that the marriage never existed legally. To qualify for an annulment, a marriage must be legally void or voidable. Void means that it is not valid, while voidable means that a court can declare it to be invalid if it is challenged. To be eligible for an annulment you must be able to prove one of the specific grounds to establish that your marriage is void or voidable. Otherwise, eligibility for an annulment is simple. However, many states require strict proof to declare an annulment.

Step 1: Meet one of the legal grounds for annulment. Although the grounds vary from state to state, several reasons for annulment are common to all states. If a spouse did not have the legal capacity or the legal intent to enter into the marriage, an annulment is possible. Some common reasons that a spouse does not have the legal capacity to marry include a preexisting marriage, mental incapacity or being underage. Another reason is consanguinity, or a marriage between close relatives, which is illegal.

Step 2: Determine if you were married without the proper intent, as an alternative to lacking the capacity to marry. A person who marries under fraudulent circumstances or under duress lacks the proper intent to enter into a marriage. For example, a person with false identity commits fraud if he marries someone who has no knowledge of his true identity. Another example is a sham marriage, in which the parties marry to deceive a government or corporate entity. A marriage that has not been consummated by physical relations can be annulled in some states.

Step 3: Be the innocent spouse in your marriage in order to file for an annulment. In some states and under certain circumstances, the wrongdoer in a marriage cannot be the plaintiff in a lawsuit for annulment. For example, if a man forced you to marry him under duress, he cannot file for annulment himself. Or, if you were tricked into marrying someone but remained married after you learned the truth, you cannot file for an annulment in many states because your actions retroactively approved the marriage agreement.

Step 4: Meet the residency requirements for the county and state where you seek an annulment. Usually, you or your spouse must have lived in the county for at least 90 days prior to filing for an annulment. Many states require a much longer period of residency. A lawyer or other officer of the court can tell you if you meet the residency requirements.

Step 5: Meet your state’s statute of limitations for annulment. For example, you might have to file within 90 days of the wedding ceremony, depending on the reason you are filing. You can find out if your state requires you to file within a certain time frame by consulting a lawyer.

Annulment and Divorce Lawyer Free Consultation

If you need to get either a divorce or an annulment in Utah, please call Ascent Law at (801) 676-5506 for your Free Consultation. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506