What is an annulment?

Void and voidable marriages

US law recognizes two kinds of defective marriages.

• Void marriages are invalid from the beginning, whether or not anyone goes to court: marriages where one spouse was already married (bigamy), and marriages between close relatives as defined by state law. A court order is still wise to clear up records.
• Voidable marriages are valid until a court annuls them, and only if the right spouse acts in time. Common grounds are underage marriage without required consent, fraud, force or duress, lack of mental capacity (including severe intoxication at the ceremony), and in some states inability to consummate the marriage.

Common grounds explained

• Bigamy — a prior marriage had not ended by divorce, annulment or death.
• Consanguinity — marriage between parent and child, siblings, and in many states uncles, aunts, nieces, nephews and sometimes first cousins.
• Age — one spouse was under the state's minimum marriage age. A growing number of states, including New Jersey, New York and Minnesota, now ban marriage under 18 entirely.
• Fraud — a lie about something essential to the marriage, such as marrying only to obtain immigration benefits, concealing an intention never to have children, or hiding a pregnancy by another person. Lies about wealth, background or personality usually are not enough.
• Force or duress — consent was obtained through threats.
• Mental incapacity — a spouse could not understand the nature of marriage when the ceremony took place.
• Impotence — inability to consummate that the other spouse did not know about, in states that recognize this ground.

Deadlines and ratification

Voidable marriages can be “ratified.” If a spouse who married underage keeps living in the marriage after reaching adulthood, or a spouse who was deceived continues the marriage after learning the truth, the right to annul may be lost. Many states also set deadlines — for fraud, often a few years after discovery; for underage marriage, often before the spouse reaches a certain age. Void marriages generally have no deadline.

Annulment vs. divorce

An annulment is often assumed to be quicker or simpler, but it usually is not: the petitioner must prove the ground with evidence, and the other spouse can contest it. A no-fault divorce, by contrast, requires no proof of wrongdoing. Most lawyers recommend annulment only where a valid ground clearly exists and there is a specific reason to prefer it — religious, personal, or to avoid obligations that attach only to valid marriages.

What happens to children and property

Children born during an annulled marriage are legitimate in every state, and courts decide custody, parenting time and child support just as in a divorce. For property and support, many states apply divorce-like rules, and a “putative spouse” — one who believed in good faith that the marriage was valid — may be entitled to a share of property acquired during the relationship and sometimes to support. Other states limit what a spouse in an annulled marriage can receive, so the choice between annulment and divorce can affect money significantly.

Civil vs. religious annulment

A civil annulment is granted by a state court and affects legal status. A religious annulment, such as a Catholic declaration of nullity, is granted by a church tribunal and affects only religious status. One does not produce the other: a Catholic who divorces civilly may seek a church annulment to remarry in the church, and a civil annulment does not require any religious process.

The process

The spouse seeking annulment files a petition in family court stating the ground, serves the other spouse, and presents evidence — documents such as a prior marriage certificate, witness testimony, or records showing age or incapacity. If the court agrees, it issues a judgment of nullity. Residency rules similar to those for divorce often apply.

Before deciding

Short marriages are not automatically eligible: marrying in Las Vegas and regretting it the next day is not a ground by itself unless one of the recognized defects applies. Immigration consequences can be serious when fraud is alleged. A family lawyer can tell you whether your facts support annulment in your state or whether a divorce is the simpler route.