The Basics of Annulment in Arizona

Overview of an Annulment

Annulment is a frequently misunderstood legal concept, because popular culture and religion have presented differing and often inaccurate views of what an annulment is in terms of family law.

This article focuses only on "civil annulments," not "religious annulments," which can only be granted by a church or clergy member and have no legal effect on your marital status.

Annulments and divorces are similar in the sense that they make a determination about marital status. But the vital difference between them is that divorce ends an existing, valid marriage, whereas annulment simply declares that what everyone thought was a marriage was never actually a marriage at all. In the eyes of the law, an annulled marriage never really existed.

Grounds for Requesting an Annulment in Arizona

There are a number of possible situations when you can ask an Arizona court to annul your marriage:

• One of the parties was married to someone else (bigamy).
• The parties are related by blood.
• One of the parties was a minor at the time of the marriage, and did not obtain the consent of a parent or guardian.
• One or both of the parties lacked the mental capacity to get married.
• One of both of the parties lacked the physical capacity to get married.
• One or both of the parties were intoxicated at the time they married.
• One or both of the parties lacked the intent to enter into a marriage contract.
• The parties failed to obtain a proper, official marriage license.
• The parties used a proxy (substitute) instead of marrying each other in person.
• One of the parties perpetrated a fraud to get the other party to consent to the marriage.
• One party used force (legally known as "duress") to get the other party to agree to marriage.
• The parties have not had sexual relations or one party refused to have intercourse.
• One of the parties misrepresented his or her religion.
• One of the parties concealed his or her prior marital status.
• One of the parties secretly planned to evade a premarital agreement.

How do I Get a Court Order Annulling my Marriage?

Annulment actions are heard in Arizona's superior (trial) courts, so you'll need to file your paperwork at your local courthouse. An Arizona judge of the superior court can declare a marriage null and void and annul it by court order. The "plaintiff" (the party asking for the annulment) should file a petition for annulment, and the defendant should file a response. Other papers may also be necessary, and both parties must follow rules for service of process. Both will be summoned to appear before the court, which will hear testimony, consider the written submissions and the law, and issue an order.

Because there are serious financial and custodial implications involved in an annulment, it's very important to talk to a lawyer before proceeding.

Effect of an Annulment in Arizona

Some people worry that if their marriage is annulled, the paternity of their children will be called into question. This is technically true. Because an annulled marriage has no validity, the children born of the "marriage" are illegitimate and it's as though they were born to single parents. However, this is really a technical distinction without much of a practical impact, because Arizona law provides that "every child is the legitimate child of its natural parents and is entitled to support and education as if born in lawful wedlock." Thus, all children in Arizona enjoy the same protection and support, regardless of whether their parents are married, divorced, or never married at all. That particular law doesn't have a bearing on parental rights, but in Arizona, the courts have also decided that parents of children who are born outside of marriage have co-equal custody of the child once paternity is established.

A presumption of paternity (a strong legal assumption that the supposed father is the actual biological father) is created in Arizona when any of the following are true:

• the father and the mother were married in the 10 months immediately before the birth, or the child is born within 10 months after the marriage ends by death, divorce, or annulment
• genetic testing confirms at least a ninety-five percent probability of paternity
• a birth certificate is signed by the mother and father of a child born out of wedlock, or
• a notarized or witnessed statement is signed by both parents acknowledging paternity.

Thus, most children born out of annulled marriages in Arizona are most likely covered by a presumption of paternity. If a father wants to dispute this presumption, he'll have to prove he's not the father by "clear and convincing" (very weighty and substantial) evidence.

The Arizona court that hears the annulment case will also determine parentage and enter custody and child support orders.

In most states, because an annulled marriage is legally viewed as never having been valid, courts don't have the authority to award alimony or divide property or debts. The logic behind this is that there cannot be a marital estate if there wasn't a valid marriage. But Arizona is different, and has a more generous statute. According to Arizona law, the courts must divide the property of the spouses when it annuls a marriage.

Resources

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