Should I get an annulment or a divorce?

What are the differences between an annulment and a traditional divorce?

Question

I have been married for one year at the end of this month, and it seems that the marriage is mutually over. We have no joint assets and no children; this is my first marriage, his second. What is the difference between an annulment and a divorce? Is there an advantage to one over the other?

Answer

It’s a common misconception that if you’ve been married for a short period, you can ask the court to annul—or, erase—your marriage. While there are certain limited situations where an annulment is appropriate, most couples need to ask the court for a traditional divorce. If you and your spouse have only been married for a short period, don’t have children, and don’t have assets or debts to separate, you can file for a no-fault divorce, or in some states, an uncontested divorce.

No-Fault and Uncontested Divorce

A no-fault divorce begins when either spouse files a request with the local court. If you meet the state’s residency and no-fault divorce requirements, the court will grant your request. Every state has a no-fault divorce policy, meaning that neither spouse must point fingers or place blame on the other for the breakdown of the relationship.

Although no-fault divorce requirements may vary depending on where you live, typically, if you can demonstrate that you and your spouse are separated, you suffer from irreconcilable differences, or you’re incompatible, you will be successful in your request for a divorce. If there are unresolved issues on child custody, visitation, child support, alimony, or property division, the court will decide how to handle the disputes before entering a final judgment.

From your question, it sounds like you may qualify for a more streamlined process called uncontested divorce. If you and your spouse agree on all divorce-related issues, such as property and debt division, and you’re willing to put the details of your agreement in a written contract—often called a divorce settlement agreement—which you then present to the judge, the court will likely grant your request. Because you and your spouse handle any divorce-related issues before you see the judge, the process for an uncontested divorce is typically less time-consuming and less expensive than a traditional divorce.

Annulment

Annulment is like divorce in that the couple (or a judge) decides how to handle custody, property division, and support issues, but in the end, the court treats an annulled marriage as if it never happened. In order to obtain an annulment, one spouse must demonstrate that the marriage was not valid (wasn’t legal) from the beginning. Although the grounds for annulment may vary from state to state, the following are the most common:

  • one or both spouses is of "unsound mind" or mentally incapacitated and therefore unable to consent at the time of the marriage, for example if one or both were incapacitated due to consumption of alcohol or drugs
  • one of the spouses was underage at the time of the marriage and did not have parental consent
  • one spouse was still married to someone else (bigamy)
  • the marriage was obtained by fraud, or
  • the marriage is between blood relatives.

If you can show grounds for an annulment, and a judge grants your request, the court will treat your marriage as if it never happened. Overall, there’s no real advantage to annulment, unless you’re concerned with the stigma that may come with a divorce. Some couples would like to avoid divorce for religious reasons, but you'll still need to meet your state's requirements for a legal annulment of your marriage.

If you’re considering divorce or annulment, consult an experienced family law attorney near you for more details.

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