Annulment vs. Divorce

Although both annulment and divorce end a marriage, not all marriages can be annulled. To annul your marriage, you must meet your state's (often strict) requirements. Here's an overview of the two kinds of annulment and the relationship between annulment and divorce.

What Is an Annulment?

An annulment is an order that declares a marriage invalid—in other words, it declares that the marriage never happened. There are two types of annulments: civil and religious.

Civil Annulment

A civil annulment terminates your marriage and is granted by a judge. When a judge grants a request for an annulment, it's as if the marriage never happened.

Either spouse may seek an annulment by filing a petition (legal request) with the court that states the grounds (reasons) for an annulment. Although each state has its own annulment requirements, the most common grounds for annulment are:

• Underage marriage. Either spouse can seek an annulment if one or both spouses were under the legal age of consent (generally 18) at the time of the marriage. In certain states, like Texas, when a person who is 16 or older but under 18 marries without a parent's consent, the marriage could be void. However, once the underage spouse turns 18, both spouses waive their annulment claim if they continue to live together.
• Bigamy. You can't be legally married to two people at the same time. If your spouse was married to someone else when you held your nuptials, you will qualify for an annulment on bigamy grounds.
• Mental Incompetence. If you or your spouse was too impaired by alcohol or drugs at the time of your marriage to provide consent, you can seek an annulment. Likewise, a spouse who does not have the mental capacity to understand the marriage ceremony or provide consent, cannot be legally married.
• Failure to Consummate Marriage. A court may grant an annulment if one spouse is physically unable to have sexual intercourse and didn't tell the other spouse before marriage.
• Fraud or Misrepresentation. Fraud is a basis for an annulment. A spouse who hides or misrepresents an essential fact of the marriage, such as having children or significant financial debts, has committed fraud. However, spouses waive their right to claim marriage fraud if the innocent spouse found out about the fraud but didn't immediately separate from the guilty spouse.

Some annulment laws have time limits on when you can file. Most of these time limits don't depend on how long you've been married. Rather, the deadlines to file depend on the grounds for the annulment. For example, in Colorado, if you want to annul your marriage on fraud grounds, it doesn't matter how long you've been married. Instead, what matters is when you found out about the fraud: You must file for annulment within six months of discovering the fraud. (Colo. Rev. Stat. Ann. § 14-10-111(2)(a) (2021).) But if you want to annul your marriage for reasons of bigamy, you can do so at any time before your death (and your estate might even be able to annul your marriage after your death). (Colo. Rev. Stat. Ann. § 14-10-111(3) (2021).)

Because each state's laws are different, you'll want to check your state laws to see if any time limits apply to your situation. Even if you've missed a deadline to annul your marriage, you can still get a divorce.

Religious Annulment

A religious annulment is issued by a church or a religious tribunal, rather than a court. Religious annulments do not terminate a legal marriage. Specifically, the issuance of a religious annulment by a church doesn't guarantee that a judge will grant a civil annulment in your case. Likewise, a church might not recognize a civil annulment obtained in a court of law.

What Are the Differences Between Annulment and Divorce?

Divorce is a legal dissolution of marriage. Unlike an annulment, a divorce does not invalidate your marriage, it just ends it. Each state has its own rules governing divorce. All states allow some form of no-fault divorce, meaning either spouse can file for a divorce without having to prove who caused the marriage's breakdown. Some states allow spouses to file fault-based divorces on grounds like adultery, cruelty, or desertion.

Property Division

In a divorce, because the court recognizes your marriage as legal, a judge will need to divide marital property and debts. A judge will not divide property in an annulment because you were not legally married—so there is no marital property or marital debt to divide.

Spousal Support (Alimony)

Because an annulment erases or invalidates a marriage, it also erases a spouse's right to seek spousal support (alimony). When you file for an annulment, you waive your right to seek alimony or spousal support. If you feel like spousal support is necessary in your case, you should seek a divorce rather than an annulment.

Similarities Between Divorce and Annulment

Annulments and divorces are alike because they are both a legal end to marriage. Whether you have obtained an annulment or a divorce, the outcome is similar: You are single again and free to remarry.

Also, a spouse who seeks an annulment has a burden of proof similar to a spouse seeking a fault-based divorce, because the spouse who files must prove the facts demonstrating that the marriage meets the state's criteria for granting an annulment.

Does an Annulment Affect Child Custody and Support?

An annulment doesn't affect a child's right to financial support. Both parents—no matter their marital status—are responsible for supporting their child. A husband is still the presumed father of any child born during a couple's marriage, regardless of whether the marriage ends in an annulment or divorce. And, even though an annulment essentially erases a marriage, it doesn't affect the legitimacy of any children born during that marriage.

When a couple who has annulled their marriage need to decide child custody and child support, courts will apply the same laws that apply to all other parents. In most states, that means that the court will apply the state's child support guidelines when assessing each parent's financial responsibilities, and will evaluate what's in the child's best interests when deciding custody.

Can Same-Sex Couples Get an Annulment?

Same-sex couples had a historic victory in 2015 when the United States Supreme Court legalized same-sex marriage throughout the country in the Obergefell decision (Obergefell v. Hodges, 576 U.S. 644 (2015)). As a result of Obergefell, all states must grant divorces and annulments to same-sex couples in the same way they do for opposite-sex couples.