James R. Balmforth: 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.

Finances

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.