There are two options for legally leaving a marriage: divorce and annulment, and there are several similarities and differences between the two.
Legally, some of the biggest differences include the type of evidence that is required to obtain an annulment vs. a divorce and the obligations to and from the former spouse with each ruling. Many religions define divorce and annulment as well, and the legal ruling does not necessarily have to align with the religious designation.
Since the year 2000, Marriage rates have slowly declined from a rate of 8.2 per 1,000 total population to 6.5 in 2018, per the National Center for Health Statistics (CDC). As for divorces and annulments, that rate has also declined from a rate of 4.0 per 1,000 total population to 2.9 in 2018. While the differences in legal grounds and consequences of divorce vs. annulment arise from the same conceptual difference, a divorce ends a marriage. In contrast, a legal annulment asserts that a valid marriage never existed in the first place. A legal annulment is not to be confused with a religious annulment; the latter has no legal effect.
Here we examine the differences in the legal concept of divorce and annulment
Primary Differences Between Divorce And Annulment
The differences in the legal grounds and consequences of divorce vs. annulment arise from the same conceptual difference — a divorce ends a marriage. In contrast, an annulment asserts that no valid marriage ever existed in the first place. Although most couples choose divorce, an annulment is a better option for one or both spouses under certain circumstances. Legal annulments are rare, and the consequences of an annulment differ significantly from the effects of a divorce. Let’s dive deeper into this issue by looking at legal justifications for an annulment.
Legal Justifications For Annulment
The legal justifications for annulment vary from state to state. Some of the most common grounds include:
• Bigamy-one spouse was married to someone else at the time of the marriage.
• Incest-after marriage, the couple discovers that they are close relatives to each other.
• Duress-an example would be a “shotgun wedding”.
• Minority-at least one spouse was too young to marry.
• One spouse defrauded the other- an example would be when one spouse is proven to have lied and instead intends to use the marriage to obtain some sort of nefarious gain.
• The husband was impotent, and the other spouse did not know of this condition before the marriage.
Annulment In Contrast With Divorce
All US states allow no-fault divorce, which allows either spouse to justify divorce by citing irreconcilable differences without specifying the nature of those differences. A few states allow the use of covenant marriages as a way around a no-fault divorce. Specific grounds, such as adultery, must be proven by the spouse seeking divorce before the marriage can be dissolved.
Burden Of Proof
It is said that one party bears the burden of proof when the law places the responsibility of proving the grounds for legal action on that party. Typically, the person seeking a change in a legal relationship, such as a marriage, bears the burden of proving that the change is justified. It is the responsibility of the spouse seeking an annulment to prove that one of the foregoing grounds exists. Without enough evidence in favor of the existence of adequate grounds (higher than 50/50 likelihood), an annulment will not be granted.
As for a covenant marriage, a type of marriage available only in Arizona, Arkansas, and Louisiana, both spouses promise they will participate in counseling before filing for divorce and agree to a longer waiting period before the divorce is legally final. As is the case with an annulment, it is the responsibility of the party seeking to dissolve a covenant marriage to prove that sufficient grounds exist to justify dissolution.
There is no burden of proof needed for the dissolution of a no-fault divorce. All that is required is that one party simply wants a divorce.
Procedure To Obtain A Divorce Vs. Annulment
The procedure for obtaining a divorce and the procedure for obtaining an annulment are similar. One spouse files a petition with the court, a hearing is held, and the judge issues an order. Generally speaking, a divorce starts with a divorce petition regardless of your state of residence. The petition is written by the petitioning spouse (or their legal counsel) and served on the other spouse. It’s then filed in the county where one of the spouses resides, regardless of where the marriage was held. While not mandatory to hire legal counsel before obtaining a divorce, legal separation, or annulment, it is highly advised. Take into consideration the legal complexities of child custody, support, and the division of assets–all things that rely heavily on the understanding of the law and your rights.
Serving The Divorce Petition
Service of process takes place when the petitioning spouse serves the divorce papers or the petition (summons) to the other spouse. It’s important this phase of the divorce is handled to the letter of the law in your jurisdiction.
The Final Steps Of Legally Terminating A Marriage
In a divorce, both spouses will be required to disclose any and all information regarding combined and personal assets, liabilities, income, and expenses. If uncontested and spouses agree on the terms of the divorce, all that will be left to do is the filing of legal documents and paperwork. Once the court enters the final judgment, the marriage is legally terminated or dissolved–given the state’s waiting period. However, if spouses cannot come to an agreement, arbitration or a trial will occur. This, of course, would be the last resort, and the need for legal counsel is greatly heightened.
In the instance of a legal annulment, a judge can refuse to grant the annulment, but a refusal to grant a no-fault divorce is almost unheard of. In an annulment, issues such as child custody and child support must be resolved in much the same manner as they are in a divorce. Generally, in an annulment, neither party can claim spousal support. Additionally, property division is radically different in an annulment than in a divorce. Instead of applying the governing divorce principles of community property or equitable division, the court tries to leave each party in the same position they were before the wedding was held.
Although divorce laws, including those regarding service of process, the process by which your spouse is notified of the divorce proceedings, are broadly similar across the various states, significant differences remain. As would be with any legal agreement, consideration, and thought are sincerely advised. It is highly recommended to obtain the advice of legal counsel in regards to your local laws.
An annulment ends a marriage that at least one of the parties believes 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 voidable.
An annulment can also end a marriage if the marriage was not legal to begin with. This might occur if issues such as bigamy or incest made the marriage illegal.
The legal grounds for obtaining an annulment vary between states, but typically include reasons like the following:
• One or both spouses were forced or tricked into the marriage.
• One or both spouses were not able to make a decision to marry due to a mental disability, drugs, or alcohol.
• One or both spouses were already married at the time of the marriage (bigamy).
• One or both spouses were not of legal age to marry.
• The marriage was incestuous.
• Concealment of major issues such as drug abuse or a criminal history
Because one of these conditions must be met for an annulment to be granted, they are rare.
Length 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 certain 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. The marriage still has to meet one or more of the conditions above in order for it to be annulled.
Both types of marriage dissolution can be fairly complicated from a legal standpoint, requiring costly and lengthy legal proceedings. And both start the same way, with one or both of the spouses formally asking the court for either a divorce or an annulment.
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.
After a Divorce or Annulment
Among the differences between the two types of marriage dissolution: After an annulment, the marriage is considered to have never legally happened. It is as if the clock is turned back to before the marriage.
After a divorce, the former spouses may still have obligations to each other, such as spousal support, joint childrearing, and division of shared property.
After a divorce, spouses are often entitled to a certain number of years of spousal support, alimony, or a portion of each other’s’ 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. Instead, they will revert to the financial state they were in prior to the marriage.
Many religions 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.
Can I apply for an annulment?
To apply for an annulment, you have to complete a nullity petition. Before you do so, it is important to be aware that the grounds for annulment are limited and they can be difficult to establish.
You can get an annulment if your marriage can be shown to be ‘void’, meaning it was not valid under the law in the first place. For example, your marriage may be void if:
• You or your partner were under the age of 16 when you married
• You are closely related
• One of you was married to someone else or in a civil partnership when you married
It’s also possible to get an annulment if your marriage is ‘voidable.’ This applies if you:
• Didn’t consummate the marriage – although this is not the case for same sex couples
• Didn’t give proper consent to marry: for example, if you were under the influence of alcohol or you were coerced into it
• Were pregnant with another man’s child when you married
Your marriage may also be voidable if one of you had a sexually transmitted disease when you got married.
Can I get a divorce?
After a year of marriage, you can file a divorce petition to start divorce proceedings if you can prove that your relationship has irretrievably broken down. However, this must be proven by one of the following five reasons:
• Adultery: Where you can prove that your spouse has had a sexual relationship with a member of the opposite sex during your marriage
• Unreasonable behavior: Where your spouse has engaged in behavior that you couldn’t reasonably be expected to tolerate
• Desertion: Where your spouse has been absent for more than two years in the last two and a half years, without reason, without agreement or simply with the intention of bringing your relationship to an end
• You have lived separately for more than two years: This enables you to seek a divorce if you both agree
• You have lived separately for more than five years: This enables you to seek a divorce even if your spouse doesn’t want to get divorced
If you are able to give one of these reasons, you will then have to go through a number of legal stages in order to dissolve your marriage.
What are my next steps to divorce or annulment?
Whether you think you may qualify for an annulment or you’re looking to get a divorce, it is important to seek expert legal advice. A family law solicitor will talk you through your options and guide you through this process. Separating from your spouse can be an emotionally fraught time and you will no doubt have a lot on your mind. As well as ending your marriage from a legal standpoint, you might have to resolve potentially complex issues concerning children, money and property.
A specialist solicitor will help to protect your interests and achieve the best outcome for you and your family. They will be able to tell you whether you have grounds to file for annulment or divorce, and advise you on the next steps to take. They will also help to minimize any stress and anxiety during this difficult period.
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