Annulment Versus Divorce

The differences between an annulment and a divorce.

What Is an Annulment?

There are two types of annulments: civil and religious. A civil annulment ends your marital status. Your state can issue a civil annulment if you meet the legal requirements. You must request this type of annulment through your local court, the same way you would file for divorce. On the other hand, if you request a religious annulment, you must ask the church to grant it. Religious annulments do not terminate a legal marriage.

What Is a Divorce?

Divorce is a legal process where the court formally dissolves and ends your marriage. You must meet your state's specific legal requirements to qualify for a divorce. Every state offers a no-fault divorce procedure, which is where neither spouse blames the other for the relationship's demise. A handful of states still permit spouses to file a fault-based divorce, meaning one spouse blames the other for the breakup.

Are Annulments and Divorces the Same?

The two procedures are not that similar in terms of the outcome. With an annulment, a court will conclude that your marriage was invalid or void from the beginning. In other words, if the court grants you an annulment, it will treat your marriage as if it never happened. With a divorce, a court recognizes your marriage as legal but then terminates your marital status. Additionally, it will need to resolve issues of dividing marital property and debt, awarding child and spousal support, and deciding child custody.

There are some similarities between the process of an annulment and a fault-based divorce. The spouse seeking an annulment has to prove that the other spouse was at fault. In an annulment action, one spouse must prove that the other spouse's actions make the marriage void.

In a fault-based divorce, the spouse seeking a divorce must show that the other spouse caused the marriage's breakdown. By contrast, no-fault divorces require less time and evidence than an annulment. You can seek a no-fault divorce based on irreconcilable differences, which require no evidence that either spouse was at fault.

What Are the Grounds for Obtaining an Annulment?

Each state has its own rules, but the most common grounds for an annulment are the following:

Underage

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. Once the underage spouse turns 18, however, both spouses waive their annulment claim if they continue to live together.

Bigamy

It's illegal to be married to two people at the same time. If your spouse was still married when you held your nuptials, you can seek an annulment on bigamy grounds.

Unsound Mind

You can file for an annulment if either you or your spouse was too impaired by drugs or alcohol at the time of your marriage to provide consent. A judge will also grant an annulment if either spouse lacked the mental capacity to consent to the marriage.

No Consummation of Marriage

One spouse can file for an annulment if the other spouse is physically unable to have sexual intercourse and did not disclose this fact at the time of marriage.

Fraud or Misrepresentation

Fraud occurs when one spouse hides or misrepresents an essential fact of the marriage, such as having children or significant financial debts. Spouses waive their right to claim marriage fraud if the innocent spouse found out about the fraud but did not immediately separate from the offending spouse.

You are waiving your right to spousal support if you seek an annulment instead of a divorce.

Will an Annulment Affect Child Custody and Support?

An annulment essentially erases a marriage, but it won't affect a child's right to financial support or the legitimacy of any children born during the marriage. A husband is the presumed father of any children resulting from a marriage, regardless of whether it ends in a divorce or an annulment.

Child support awards aren't affected by an annulment. Most states have issued their own child support guidelines using a calculator that evaluates the parents' income and time with the children, not their marital status.

You are waiving your right to spousal support if you seek an annulment instead of a divorce. A divorce dissolves a marriage, whereas an annulment invalidates a marriage. Spouses can't ask for spousal support as a result of an invalidated marriage.

A Note About the Presumption of "Parentage" and Same-Sex Couples

In 2015, the United States Supreme Court issued a historic victory for same-sex couples by legalizing same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644.) Soon after the ruling, same-sex couples throughout the country asked state courts to provide the parentage presumption—that both spouses in a legal same-sex marriage are legal parents to any children born during the marriage. While the ruling in Obergefell was clear regarding marriages, it didn't provide a clear understanding of how the states should treat same-sex couples with families.

In 2016, a lesbian couple challenged the law in Indiana, which denied them the right to place both spouses on their child's birth certificate. The couple (along with seven other couples) fought the case in federal court and won, but the state's attorney appealed to the state's 7th Circuit Court of Appeals. On January 17, 2020, the court upheld the federal court's decision requiring the state to list both parents on the birth certificate. The state of Indiana requested guidance from the United States Supreme Court, but the Court refused to hear the case in December 2020. (Henderson v. Box, No. 17-1141 (7th Circuit, 2020).)

The Henderson case is important because it permits married couples to share the same rights as opposite-sex couples. Additionally, it provides clear guidance to other state courts when either spouse files for divorce or annulment.

If you have more specific questions about the implications of an annulment on property, support, and child custody issues, contact a local family law attorney for advice.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Considering Divorce?

Talk to a Divorce attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you