Annulment vs. Divorce

Annulment vs. Divorce

Ending a marriage is not an easy thing to do. Sometimes the individuals wish they could wipe the slate clean and make the last few months or years disappear. An annulment is a way of doing just that. It voids the marriage. In the eyes of the law, when an annulment is granted, it is as though the marriage never happened, at least as far as property and debts are concerned.

The law limits judges’ ability to grant annulments, however, and judges will only grant annulments to those who truly never should have been married in the first place. To qualify for an annulment, the marriage must have been voidable for some reason. If the parties cannot show grounds for an annulment, they will not qualify and must instead seek a traditional dissolution of their marriage.

Grounds for an annulment can be difficult, complex and costly to prove. Some grounds for an annulment may be easier to prove, such as an incestuous marriage, an underage marriage, or bigamy. However, other factors which are also valid, such as mental capacity, fraud, duress, or lack of consent may be more difficult to prove.

Some mistakenly believe that a short marriage or one which has not been consummated may be annulled for those reasons alone. That is not the case. Generally there must be a jurisdictional impediment (e.g., underage marriage, incestuous marriage, or bigamy) or some fraud, duress or misconduct committed in connection with entering the marriage before an annulment will be granted.

Individuals should weigh the advantages and disadvantages of seeking an annulment. The main benefit of an annulment is for the person who has acquired significant property during the marriage or whose spouse has incurred significant debt during the marriage. This is because, if the marriage is annulled, the law treats the marriage, for property and debt purposes, as if it never existed. The spouse who acquired property during the marriage would keep the property he or she acquired and would not be responsible for paying the debts his or her spouse had incurred.

On the flip side, however, an annulment is the last thing a person wants when his spouse has acquired significant property during the marriage. Take this extreme example. If two people get married without a premarital agreement and the wife wins the lottery during their honeymoon, the husband will receive half the lottery winnings when they get divorced. If the wife is able to obtain an annulment, however, the husband gets none of the lottery winnings. This is definitely something to consider and discuss with your attorney when making a decision whether to pursue an annulment or a traditional divorce.

Copyright © 2016 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.


About Oliver Ross

Oliver Ross, JD*, PhD founded Out-of-Court Solutions Inc. in 1995 and since then has mediated over 3,000 divorce and family matters. He is a select member of the Maricopa Superior Court Family Mediation roster