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Understanding The Difference Between Annulment And Divorce

Posted on by Dawna M. Roberts in LawSeptember 02, 2021

Marriages or civil unions typically end in one of two ways, divorce or annulment. Many people don’t understand the difference between annulment vs. divorce or the subtle differences. Read on to learn about the difference between annulment and divorce and what qualifies a couple for each option.

annulment vs divorce

Annulment Definition

Although you are probably well aware of what a divorce is, you may question what is an annulment? Both are legal processes of ending a marriage, but an annulment depends on the religion of the person and the state laws. A court-sanctioned annulment legally dissolves the marriage, but a religious one does not. So, although someone may have their marriage annulled by the church, they may remain legally bound.

The definition of annulment is a legal ruling that declares a marriage “legally invalid” as though it never happened. As far as the courts go, the marriage is null and void and should never have occurred in the first place.

However, that does not mean that the public records of the marriage will be erased. The marriage will remain on file even in the event of a marriage annulment.

Divorce Definition

On the other hand, divorce is a court-related process where a “valid marriage” is legally terminated so that both spouses are no longer bound together and are declared single people again.

A divorce occurs when one or both spouses decide they no longer wish to be married to one another. Divorces that involve children are more complicated and painful for the whole family. Neither party needs to be at fault. A divorce may be granted on the legal grounds that the couple simply doesn’t want to be married anymore. These are called no-fault divorces.

The biggest difference between annulment and divorce is that the marriage should have never existed in the case of annulment. With an annulment, one or both parties may be victims due to a misunderstanding, bigamy, fraud, concealment, or lack of consent. Often this is due to one party not having the mental capacity to understand the undertaking of marriage.

A divorce can be initiated due to a no-fault or a fault-based reason. Legally an annulment is declared null and void as though it never occurred. Divorce remains a marriage that ended in divorce.

It is often challenging to get an annulment, whereas getting a divorce is usually relatively easy. One thing that remains the same regardless of whether you have your marriage annulled or get a divorce, child support and child custody will be treated the same by the courts. Alimony, a.k.a. spousal support and the division of marital property may also be treated identically in an annulment or divorce case. There is very little distinction between the two when it comes to the divorce process or annulment process. State law dictates what community property in a marriage and the correct property division upon divorce is. Sometimes one person files a court order to correctly divide property as they feel a mistake has been made.

Legally the process for both is similar in that one party may file a petition with the court, and a judge will review it before granting the outcome. However, it’s always a good idea for married couples to consult a divorce attorney before filing anything with the courts. A family law attorney may assist you with other options and help to protect your interests by doing things the right way. Whether you are interested in a civil annulment, religious annulment, or divorce proceedings, a law firm specializing in family law can provide you with proper legal advice on how to proceed.

annulment vs divorce

When Can You Get an Annulment?

An annulment is much different than a divorce in that one or both parties must prove that the marriage was legally invalid. However, there are some legitimate reasons that a court will accept as reasons for a legal annulment. They are as follows:

  • If one or both spouses were tricked into the marriage (fraud).
  • When one party conceals a child from a previous relationship or a serious illness.
  • If either party was under the influence of drugs or alcohol when the marriage took place.
  • If either or both spouses were already married when they said their wedding vows.
  • If either was underage and not legally approved to get married.
  • If either party was of unsound mind (mentally ill) at the time of the marriage.
  • The marriage was never consummated (due to impotence or other causes).
  • The marriage was a result of incest.
  • Fraud or misrepresentation on either party. For example, if one party had a criminal past and failed to disclose it before the marriage.

Some people assume that the length of the marriage dictates whether or not a judge will grant an annulment, but that is not the case. Instead, one of the above stipulations must be present, which is why annulled marriages are so rare.

When Can You Get a Divorce?

Each state heavily regulates the rules of divorce and legal separation. Almost every state has a no-fault clause where a couple can get divorced without blaming the other party or proving any wrongdoing. Common grounds for divorce are often infidelity. Although annulment can be difficult to obtain, it is usually quite easy to qualify for a divorce in most U.S. states. In many cases, a couple can file due to “irreconcilable differences.” However, some spouses may file due to infidelity or violation of a prenuptial agreement.

There is usually no required waiting period after marriage to file for divorce. However, if the couple has children, the courts will determine custody and child support which they will have to work out with their ex-spouse.

How to Figure Out If Someone Has Been Married Before

The best way to find out if someone has been married before is to consult public or court records. The problem is that most public records are stored in the state and town where the event occurred. So, unless you know where and when your subject was married, you may have trouble finding the information. The courts work the same way. No centralized court database exists, and the laws vary from state to state.

However, the good news is that you can use an effective tool like InfoTracer to search for someone’s history and find out all about them, including prior marriages, divorces, bankruptcies, legal issues, criminal records, and much more.

Even if you are happily married, it’s a good idea to understand the difference between annulment and divorce so you know your options if you ever need them. At the very least, you should consider doing a full background check on someone before the marriage ceremony to reveal any skeletons in their closet before the wedding.

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