There are different legal options available to deal with a failed marriage. A couple can go to court asking to get divorced or may choose to go another route and look to get an annulment instead.
An annulled marriage is when a marriage never happened in the court’s eyes.
Getting a marriage annulment has many potential impacts on your marital status, custody of any children, and potentially on financial matters. Before you file for an annulment, understand first how it differs from divorce and learn the ramifications of this decision.
Here are the marriage annulment questions we will answer here:
Choosing to get an annulment is a way to have your marriage nullified and thus end an unsuccessful marriage. In an annulment, the court determines whether a marriage is legally valid or not.
But, what is considered an annulled marriage?
Annulled Marriage Meaning
A decree of nullity is a court’s declaration that a marriage never occurred in the eyes of the law. This means that the marriage between you and your spouse isn’t valid and was never a legal union.
Annulment is different from divorce. While annulment is a declaration of an invalid marriage, a divorce is a legal termination of a valid marriage.
Legally, there are two types of marriages eligible for annulment:
Void marriages – A null or void marriage is considered to have never occurred due to the absence of at least one of the formal requisites of a valid marriage. These requirements defined by each state.
Voidable marriages – A voidable marriage is a valid marriage subject to cancellation through filing an annulment if contested. Once granted by the court, the marriage is also considered to have never happened in a legal sense.
How Does an Annulment Work?
First, an annulment may only be granted if it meets state specific legal requirements. The legal justifications make legal annulment very rare in some states, and they may include the following:
One spouse was forced or tricked into getting married;
One or both spouses has an ‘unsound mind,’ which is a mental condition preventing them from understanding the duties of marriage;
One spouse was already married at the time of the marriage;
The spouses are blood-related, causing an incestuous marriage;
One spouse has impotence or an incurable physical incapacity;
One spouse has or had concealed important information such as criminal history or drug abuse
Because one of these conditions must be met for an annulment to be granted, they are rare. However, if you are given an annulment, it means you and your spouse can start a new life with a clean slate. And because the marriage is nullified, your marital status becomes single or unmarried instead of divorced. In the eyes of the law, your marriage never happened.
Many couples also find they’re significantly better off financially because they don’t need to share their properties nor pay alimony. Since a marriage is deemed to have never occurred, each spouse isn’t seen as a married person from a legal point of view. However, the original license application of marriage and annulment remains in the public record.
When Can a Marriage Be Annulled?
A marriage is only considered annulled when the law concludes that it was either void or voidable. This designation is subject to meeting specific criteria, or else an annulment would not apply. It’s critical to examine the various circumstances that surround a marriage to make that determination.
Void marriages automatically qualify for an annulment because they were formed based on an illegal act. However, even though legal reasons may exist, the court won’t invalidate voidable marriages unless one of the couple files for an annulment. This point is crucial as it is enforceable only when one of the partners seeks legal action in their marriage.
What Are Marriage Annulment Reasons?
The reasons for getting an annulment are very different than the divorce reasons. Here are the five common reasons across states you can may use to get a marriage annulment:
Underage marriage – In the U.S., the legal age to get married for both sexes is 18. If a person under 18 gets married, they must have their parent's or guardians' written consent. For a person under 16, they need an order or approval from a judge to get married. If they fail to meet any of these requirements, the underaged spouse or their parents can file for an annulment.
Mental incapacity – Another reason for marriage annulment is the lack of consent or mental incapacity of a spouse to get married. If a spouse is mentally ill (mentally incapacitated) at the time of marriage, the other spouse may seek an annulment.
Marriage between relatives – An incestuous marriage is a strong grounds for an annulment. If you and your partner are close relatives biologically, you may not qualify for marriage. For example, you and your spouse may be parent and child/stepchild, uncle and niece, aunt and nephew, cousins, or grandparent or grandchild.
Missing first spouse – If a party believes that their first spouse was missing for at least five years or was deceased, but the person is found to be alive later on, the party may file for an annulment of the first marriage.
Refusal to consummate the marriage – If a spouse is incapable of having sexual relations but unaware at the time of marriage, annulment is possible.
Incurable psychological incapacity for five years or more – If a spouse suffers from an incurable mental illness for more than five years, the other spouse may seek an annulment.
Entering marriage by fraud, force, or duress – You may seek an annulment if you are pressured, forced, or tricked into entering the marriage. Some of these possible examples include the following:
Marrying to get a green card status
Faking pregnancy to trick someone into marriage
A spouse is incapable of having a child, and they lied about it
Blackmailing and threatening to marry
Hiding an existing pregnancy
Concealed intent not to engage in sexual relations
Concealed intent not to cohabitate with the other spouse
The most common grounds for annulment are bigamy, duress, and fraud.
Do I Qualify For a Marriage Annulment?
The only way for the court to grant a decree of nullity is by proving any of the following legal grounds: misrepresentation or fraud, incest, lack of consummation, lack of consent, bigamy, unsound mind, or coercion.
If you want to file for an annulment, you should first consult with a lawyer in your state to determine whether the specifics of your situation provide legal grounds for an annulment. If none of these legal grounds for annulment applies to you, it will be challenging to impossible to convince the court to grant you the annulment.
It’s also essential to take note of the following facts about annulments:
While the states’ statutes of limitations vary, the length of a marriage is generally not a factor for determining whether an annulment is eligible or not.
If an annulment is based upon fraud or misrepresentation, it’s necessary for the spouse filing for an annulment to end the marital relationship right after learning about the fraud. If they still cohabitate once the innocent spouse finds out about the deception, many jurisdictions consider that they must resolve the issue between them and that the deception was rendered a non-issue.
Once the couple has children, many courts are reluctant to grant an annulment.
In many states, if you continue to cohabitate with your spouse after learning the grounds for annulment, it can potentially cause these grounds to be forgiven. Thus, the case may be dismissed.
An annulment limits the spouses’ ability to share their assets or obtain survivorship benefits that would otherwise be available with a divorce.
Where Can I Get My Marriage Annulled?
You can file an annulment through your local court in any state. The only requirement is that you live in the state in which you file your annulment. For example, if you live in California, you can file your annulment there.
Unlike divorce, there’s no length of stay requirement for residency. So you can simply file your annulment in whatever state you currently reside.
How To Get a Marriage Annulled?
There are several essential steps you need to follow to begin the annulment process.
Fill Out Your Court Forms
Before pursuing an annulment case, make sure you understand the legal grounds surrounding your circumstances. You may want to consult with a lawyer to verify first if you qualify for an annulment.
As is the case with divorce, filling out your court forms is the first step to start your annulment case. Ensure checking the boxes applicable to annulment or nullity. It’s also crucial to check the correct box to serve as the basis of your petition to get an annulment.
It may be challenging to prove the invalidity of your marriage, but you need to be clear and concise on the requirements to prove the reason for your case.
With this, if the court doesn’t grant the annulment, you can still move on under the same case filing for a divorce. Here are the steps in filling out your court forms:
Download and fill out your annulment forms (Annulment Complaints, Answer & Counterclaims, Reply to Counterclaim, and Decrees) and local forms as necessary.
Write a statement of declaration why the court must grant you the annulment.
Don’t forget to review your forms. If possible, have them reviewed by a lawyer.
Secure at least two copies of each of your annulment forms
File Your Forms With the Court Clerk
After filling out all the necessary forms, you may file the originals and copies with the court clerk. If no errors are found in the inspection of your documents, the clerk takes the original copy of each form and returns the other copies with a ‘Filed’ stamp.
Serve the First Set of Forms
According to the law, you need to let your partner know that the legal process for annulment has started. Thus, you need to ‘serve’ your partner with a copy of the filed complaint and other court papers.
Be sure to note that the court won’t make any orders in your annulment case until the annulment papers are correctly served to your spouse. Additionally, the court won’t ‘serve’ the annulment papers on your behalf. It’s your responsibility to serve the defendant after filing the case. If this fails to be completed in a reasonable amount of time, the court may dismiss your case.
Court Hearing and Next Steps
After serving the annulment papers, you need to set up a court hearing where you appear before the judge and prove why the annulment must be granted. Your spouse also has the right to appear in the court hearing and make objections to your request.
Can I Get an Annulment Without the Other Person?
Yes- you can get an annulment without cooperation from your partner. Your spouse can’t stop the annulment process unless they provide the court the necessary proof. Both parties do not need to agree for an annulment to happen.
However, the one who files for the annulment needs a solid and persuasive basis to prove to the judge why the marriage should be annulled. In some cases, this can be a simple matter. However, it might be challenging for other situations, especially if the other party contests the case.
After How Many Years of Separation Is a Marriage Annulled?
Even if you’re separated from your partner for many years, it still doesn’t create sufficient grounds for an annulment. If you’re married but separated from your spouse for many years, the marriage is still valid until the court declares it null and void.
How Long Can You Be Married and Still Get an Annulment?
After getting married, the time you get to obtain an annulment depends on several factors, including why you seek an annulment, the state you live in, and your actions during the marriage. Laws vary significantly from state to state. So, it’s better to check with your state laws to know the requirements for getting an annulment.
It’s essential to file the annulment case with the local court before the state’s statute of limitations for annulment runs out. Completing the summons to inform your partner of the filed complaint within thirty days is necessary. Your spouse has another thirty days from the day of receipt to respond.
After this, you and your spouse need to attend the court hearing as designated in your case. The judge grants the annulment if the court finds the request valid and is adequately supported by your documents. Finally, you’ll receive an official order of your annulment being granted.
In California, for example, the deadline depends on your basis for the annulment case:
If filing for an annulment due to being underaged, you need to file the case within four years after turning eighteen;
If filing for an annulment due to bigamy, you can file the case at any time as long as the spouse from the previous marriage is still alive;
If filing for an annulment due to an ‘unsound’ mind, you can file at any time before any of the spouses die. The relative of the sick person can also file on behalf;
If filing for an annulment due to fraud or misrepresentation, you need to file within four years after finding out about the deception;
If filing for an annulment due to duress or force, you need to file within four years of your marriage;
If filing for an annulment due to impotence or physical incapacity, you also need to file within four years of your marriage. The impotence is valid for annulment if and only if the spouse was proven to be impotent before the marriage.
These matters can involve complicated statutes of limitations and complex custodial and financial implications. Thus, it’s necessary to consult with a lawyer or legal counsel before pursuing an annulment.
How Long Do You Have To Annul a Marriage?
The annulment process may take from a month on the short end to a year on the long end. However, this isn’t a hard and fast rule because the duration depends on several important factors, such as:
Psychological Evaluation – The person seeking annulment may have to undergo a psychological evaluation by a licensed psychiatrist or psychologist. Most courts need to have a professional basis for deciding whether to annul a marriage or not. After all, the judge alone isn’t qualified to determine the psychological capacity of a person for marriage. This process isn’t a quick one – it may take a few months to complete the evaluation portion.
Petition Preparation and Filing – After the release of the evaluation report, the lawyer starts to coordinate with the complainant regarding the drafting of the petition, which includes collecting the marital history and other essential documents. This part of the process depends on how quickly the petitioner submits all the requirements.
Summons – After filing the petition, it is then raffled to the family court. Then, the summons is issued to serve the other spouse. This part of the process depends on the number of cases handled by the court. Another factor is the time spent locating the other spouse, as they may be living in other places.
Other Factors – A court hearing involves five parts: the collusion investigation, pre-trial, petitioner’s testimonies, psychologist, and other corroborating witnesses. Some hearings may take a few months to complete. Other factors affecting the timeline are the spouse’s sudden opposition, schedules of lower courts, delay in the publication, and a few more.
How Soon Can You Get an Annulment After Marriage?
There is no time limitation on filing an annulment from the start of marriage because the legal grounds for annulment can be identified at any time. Thus, nothing stops you from seeking an annulment whether you are married with your spouse for a day, a month, a year, or more.
What States Recognize Marriage Annulment?
All states in the U.S. recognize marriage annulment, but the statute of limitations for filing an alignment significantly varies by state.
For void marriages that do not legally exist, you can file at any time as long as both you and your spouse are still living. In contrast to void marriages, voidable marriages are legal but flawed, and the law says they shouldn’t be recognized. In most states, voidable marriages can be annulled.
What's the Difference Between Divorce and Annulment?
Both annulment and divorce have the same effect – the termination of a marriage. The only difference between the two is the treatment of marriage.
For example, if you and your spouse get divorced, your marriage is still valid previously. In contrast to divorce, an annulment treats marriage as if it never occurred. In fact, the primary distinction of an annulment is that the marriage isn’t legal to begin with.
An annulment ends the same way with the divorce – the two spouses become single and may remarry with another person. In the case of divorce, the presiding court determines several issues of child support, child custody, division of assets, and alimony.
Here's the Differences Between Annulments and Divorces
Annulment
Divorce
State required length of time before filing
Immediately allowed
Varies depending on the state. Can be up to 1-2 years
Marriage legally existed
No
Yes
Children considered legitimate
Yes
Yes
Division of property
No
Yes
Alimony
No
Yes
Legal qualification
High
Low
Grounds for termination of marriage needed
Yes
No (for no-fault divorces)
Marital status after
Single or unmarried
Divorced
Witness and/or proof required
Yes
No (for no-fault divorces)
Procedure
The procedure for obtaining an annulment is similar to that of divorce. A spouse starts the process by filing a petition with the local court. Then, a hearing is held, and if granted, the court issues an order.
Typically, a divorce starts by filing a divorce petition irrespective of the state of residence. The complainant or the legal counsel writes it and then served on the other party. Then, the petition is filed in the county where the petitioning spouse resides, irrespective of where the marriage took place.
It’s highly recommended to get legal counsel before you file a divorce or annulment case. Just consider that an annulment can involve several legal complexities such as child support, child custody, and division of assets. All of these factors rely heavily on the understanding of your rights and the law. As a result, an attorney can often provide valuable legal advice in these areas.
Additionally, if a spouse asks for an annulment, and the other asks for a divorce, the court’s decision usually favors an annulment rather than a divorce as long as the grounds are satisfied. This is because the annulment is preempting the divorce. If the marriage doesn’t exist, then a divorce isn’t necessary.
The Final Steps of Marriage Termination
In filing for a divorce, you and your spouse must disclose all personal and combined assets, income, liabilities, and expenses. If both parties agree on divorce terms, what’s left would be filing paperwork and legal documents. The marriage is legally dissolved once the judge enters the final judgment, given the state's waiting period. However, if both parties can’t agree on the terms, a trial is needed.
In the case of annulment, the issues such as child support and custody should be resolved the same way as that of divorce. However, neither spouse can claim survivorship benefits or spousal support.
The division of assets is also different in the case of annulment. Generally speaking, the court tries to leave each spouse in the same status they were before the marriage happened.
The Takeaways
Now, you know the answers to the most frequently asked questions about annulment. When filing for an annulment, the court staff can’t give you any legal advice and recommendations about what you need to do. They can’t also tell you how to protect your own interests.
For these reasons, it is usually a good idea to consult with a lawyer or a family counselor before pursuing an annulment. These professionals can help you understand whether you should get an annulment or divorce depending on your circumstances.
The whole process can move faster and more seamlessly if you and your spouse already reach an agreement on many issues before the annulment process begins. So consider your decision carefully and understand that the process will take some time. And rely on the expert legal advice available through an attorney to ensure the process proceeds as smoothly as possible.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.
