Annulled Vs. Divorced

by Beverly Bird

    Spouses involved in unhappy or intolerable marriages often wish they could turn back time and undo their mistakes. In some cases, they can. All 50 states allow spouses to annul a marriage under some circumstances. A decree of annulment means the marriage never occurred. Comparatively, a divorce decree ends a marriage that legally existed.

    Grounds

    Petitions for both divorce and annulment require grounds. A petition must state a reason why the court should end or erase the marriage. Annulment grounds focus on reasons the marriage could not or should not have legally existed in the first place and are dictated by state law. For example, one spouse may have neglected to divorce his previous wife, so he was already legally married when he entered into the second union. Divorce grounds relate to why a marriage should end, and can be either fault-based or no-fault. Fault grounds address issues such as adultery or abusive treatment. All 50 states recognize some version of no-fault divorce as well. Courts require that petitioners prove their annulment grounds and divorce fault grounds. However, with a no-fault divorce, it’s sufficient that at least one spouse wants to end the marriage. No proof of anything is required. In this respect, a no-fault divorce is much easier to achieve than an annulment.

    Children

    Children born to an annulled marriage are not legally illegitimate, regardless of the fact that a decree means the marriage never happened. However, if the marriage is very short in duration, some courts might require paternity testing to establish a child’s legitimacy. In both divorce and annulment proceedings, spouses must address and resolve issues of custody, parenting time and support before the court will issue a decree. If they can’t come to terms, the court will require a trial.

    Property

    Unlike issues involving children, a family court cannot address property distribution in an annulment lawsuit. Frequently, annulled marriages are of such short duration that spouses don’t acquire jointly-owned property, so this isn't much of a factor. However, sometimes a spouse might want to annul a lengthy marriage, such as if she discovers decades later that her partner never divorced and was still legally married to someone else at the time he married her. In this case, the spouses probably own property together and have taken on joint debts. If the spouse chooses to file for divorce, the court will address property division as part of the divorce proceedings. However, if the spouse elects to file for an annulment instead, she typically must open two separate suits: one in family court to annul her marriage and one in civil or general equity court to distribute the marital property.

    Spousal Support

    Family court judges generally cannot order alimony or spousal support in an annulment proceeding. If the marriage never legally occurred, neither spouse has any obligation to support the other. This makes annulment an unattractive option for a spouse who never worked during a long-term marriage.

    Other Marital Benefits

    Other problems can arise when a court erases or annuls a marriage rather than terminates it. Spouses who filed joint tax returns should consult with a tax professional to find out if they must amend those returns. Any tax benefits gained from filing jointly may not rightfully be theirs if a court says the marriage never happened. Spouses whose marriages end by annulment cannot collect certain Social Security benefits based on their spouse’s earnings. Spouses who were married 10 years or longer, and who divorce instead, can receive such benefits.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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