If you live in Florida and you're ready to end your marriage, there are many things you’ll need to consider. One of the first may be whether you should get a divorce (also known as a “dissolution of marriage”) or an annulment.
Overview of Divorce in Florida
To get a divorce in Florida, you must prove either that your marriage is “irretrievably broken” or that you or your spouse have been mentally incapacitated for at least three years. Mental incapacitation claims are unusual. The most common basis for divorce is that a marriage is “irretrievably broken,” which means that the marriage is over and can't be saved. It doesn’t matter who's responsible for the break up. It only matters that one or both parties believe the marriage is over.
Also, in order to seek a divorce in Florida, one or both spouses must have been a Florida resident for at least six months before filing for divorce.
For more information on the basics of Florida divorce, see Divorce in Florida, by Lina Guillen.
Overview of Annulment in Florida
An annulment and a divorce are two very different things. A divorce assumes that the marriage was valid, so the judge in a divorce action will issue a court order that says, in effect, “this marriage is over.”
By contrast, an annulment order says, “this marriage was invalid and never really existed. ”There are two kinds of annulments: civil annulments, which are based in the law, and religious annulments, which are based in the traditions of various religions. This article only deals with civil annulments.
Grounds for Civil Annulment in Florida
It’s not easy to obtain an annulment in Florida. They're very rare, and they're hard to prove. The Florida state laws, or “statutes,” don't deal with annulment. Instead, Florida’s annulment law is based on rulings (“case law”) handed down by Florida’s high courts, like the Florida Supreme Court.
To get a court order annulling a marriage, you must prove that your marriage was either “void” (invalid) or “voidable.” If you can't prove that your marriage is void or voidable, you can't get an annulment, and you'll have to pursue a divorce instead.
Void Marriages
A “void” marriage is one that was never valid in the eyes of the law. Even if both spouses want the marriage to be valid, it's not. There's no way to "cure" it, or make it legally effective.
For example, if Spouse 1 legally marries Spouse 2 according to Florida law, then that marriage is valid. But if Spouse 1 later tries to marry Spouse 3, while he's still married to Spouse 2, the second marriage is void because Florida law prohibits bigamy (e.g., being legally married to more than one spouse at a time).
Other examples of void marriages include those between certain blood relatives (parent-child, grandparent-grandchild, brother-sister, or aunt/uncle-nephew/niece) and those where one of the spouses lacked the ongoing, permanent mental ability (“capacity”) to understand and agree to the marriage or dispute it later.
Voidable Marriages
A “voidable” marriage, on the other hand, is considered legally valid until a spouse requests, and the court decides, that it is invalid. For example, if a marriage was brought about because one spouse misrepresented a material (important) fact, then that's fraud and the marriage is voidable. Similarly, if one of the spouses entered into the marriage because of duress (extreme mental or physical pressure) or a temporary lack of capacity (for example, intoxication), then the marriage is also voidable.
There's a critical point to remember about voidable marriages. If the parties "hold themselves out" as married by acting like a married couple (for example, by claiming benefits that can only be awarded to a spouse), they can't later argue that the marriage is invalid. Their marriage is no longer voidable, and they can't have it annulled.
Consummation of the Marriage: Fact Versus Fiction
Many people believe that if a marriage is never "consummated" (meaning that the couple enters into a sexual relationship after they're married), then it's not legally valid. Like a lot of popular beliefs, this isn't entirely true.
If a marriage is never consummated, a court will interpret that fact as a fraud. The marriage then becomes voidable on the basis of that fraud, but not because of the failure to consummate.
The other way that consummation is a factor is if a couple enters into an otherwise voidable marriage, and then consummates it. Because marital relationships have a sexual component, spouses who consummate a marriage are "holding themselves out" as a married couple, and may lose the ability to pursue an annulment.
Effect of an Annulment Decree in Florida
A common concern about annulments is that children who were born while the parties were married become "illegitimate" when the marriage is annulled. This is only partially true.
Children born before a voidable marriage is annulled will continue to be considered the offspring of a married couple. This is because voidable marriages are valid up to the time they're annulled by a court order.
But, children who were born as the product of a void marriage aren't considered legitimate because the marriage was never valid. Since void marriages are so uncommon, this is rare.
All children are entitled to financial support from their parents, regardless of their parents' marital status. The children of a void marriage will simply receive financial support through a different court process.
After a marriage ends in annulment, neither of the spouses can later claim any of the benefits available to a spouse. For example, they aren't entitled to inherit anything from their former spouse, and they can't collect public or survivorship benefits that are supposed to be given to current spouses.
