The Basics of Annulment in Delaware

Wondering if you can get an annulment? Learn about the grounds for an annulment and how to get one in Delaware.

By , J.D. · University of Minnesota School of Law
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Overview of Annulment

Annulment is a frequently misunderstood legal concept, because popular culture and religion have presented differing and often inaccurate views of what an annulment means in terms of family law. This article focuses on "civil annulments" not "religious annulments," which can only be granted by a church or clergy member.

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 an Annulment in Delaware

Annulments are rare. Nonetheless, there are a number of "grounds," or reasons, why you can ask a Delaware court to enter a decree (a final, binding court order) to annul your marriage. If you can prove that any of the following circumstances exist, Delaware law says that the courts shall (must) issue a decree of annulment:

  • One of the spouses lacked the capacity (ability) to consent to marriage because at the time of the ceremony, the spouse was suffering from a serious mental problem or was under the influence of intoxicating alcohol or drugs.
  • One of the spouses lacked the physical capacity to consummate the marriage by having sexual intercourse, and hid this fact from the other spouse.
  • One of the spouses was underage and didn't get the consent of a parent, guardian, or Delaware judge.
  • One of the spouses used fraudulent acts or misrepresentations to trick the other spouse into entering the marriage. Not all misrepresentations will qualify. The fraud or misrepresentation has to go to the heart, or the "essence," of the marital relationship. So, for example, if Spouse A lied about having millions of dollars in an offshore bank account, that lie wouldn't go to the very essence of what it means to be married and wouldn't be a basis for annulment. However, if Spouse A only married Spouse B so that Spouse A wouldn't be deported, and kept that fact hidden from Spouse B, then that lie goes directly to the heart of the marital relationship and could be the basis of an annulment.
  • One or both spouses only entered into the marriage because they were under duress (defined as extreme coercion or possibly even force).
  • One or both spouses agreed to marry only as a joke or a dare.
  • The marriage is prohibited by Delaware law. This includes bigamous marriages (where a spouse is legally married to more than one person), polygamous marriages (where a spouse maintains informal "marital" relationships with multiple spouses), and incestuous marriages (involving blood relatives or close family members).

It's important to know that there are legal deadlines, known as "statutes of limitations," that govern when you can file for an annulment in Delaware:

  • If you want an annulment on grounds of mental incapacity or intoxication, you must file no later than 90 days after you learn about the incapacity or intoxication.
  • If you're seeking an annulment because your spouse is physically incapable of engaging in sexual relations, you must file for annulment no later than one year after learning about the medical condition.
  • If you're pursuing an annulment because you were underage at the time of the marriage, the annulment action must be brought by the underage party and the party's parent or guardian no later than one year after the date of the marriage.
  • If you want an annulment because the other spouse perpetrated a fraud or misrepresentation that you relied on when you entered into the marriage, you must file for an annulment within 90 days of the date you learned about the fraud or misrepresentation.
  • If you plan to ask for an annulment because you entered into a marriage because you were under duress, you must file for annulment within 90 days of the date you learned about the duress.
  • If you intend to file for annulment because your marriage was the result of a joke or a dare, you must file within 90 days of the date you learned about the jest or dare.
  • If you plan to seek an annulment because your marriage is bigamous, polygamous, or incestuous, you may file at any time before the death of the other party.

How Do I Get an Annulment?

It's necessary to get a court order to officially annul a marriage. If you or your spouse have lived in Delaware for the six months immediately preceding the annulment proceedings, you can file for an annulment. If you want to pursue an annulment, you should plan to file the initial paperwork in the family court of the county where you or your spouse are currently living.

An annulment proceeding begins when the petitioner (the person asking for the annulment) files and serves a petition for annulment. If the respondent (the person receiving the petition) agrees or fails to file an answer within 20 days, then the annulment will be uncontested and will take less time. If the respondent doesn't agree and files an answer that challenges the main allegations in the petition, then the annulment process will be contested and it will take longer to work out the issues.

To initiate an annulment, official court papers are available. Just complete the papers and follow the instructions located here. If you've been served with annulment papers and you want to respond, complete the papers and follow the instructions located here.

If you're thinking about asking for an annulment, it's a good idea to talk to a lawyer first. In addition to the custodial and child support issues you'll face if you have kids, there could be very serious financial ramifications for you when the court divides assets and debts. You will also want to discuss any possible statutes of limitations with an attorney to make sure you don't miss any deadlines.

If you are the petitioner and you win your case and get an annulment, you should know that your marriage will be deemed invalid from the moment you married, not from the date of the judge's order. You will be restored to the status of a single person and you can marry again.

Effect of an Annulment

Some people worry that if their marriage is annulled, the paternity of their children will be called into question. This is not an issue in Delaware, because the law explicitly states that "children born of an annulled marriage are legitimate." This means that the Delaware family courts, which have the jurisdiction to hear annulment cases, will decide custody, visitation, and child support matters just as they would for a couple that's divorcing.

Most state courts don't have statutory authority to award alimony or divide property or debts as part of an annulment case. The logic behind this is that there cannot be a marital estate if there wasn't a valid marriage. But Delaware's laws are different and more generous. Delaware annulment law allows the family court to apply the property law of divorce to annulment proceedings. This means that when a judge decides whether to grant the annulment, the judge will also divide the couple's property and debt equitably (fairly), in a way that's similar to the outcome in a divorce.


The Delaware Judiciary's Divorce and Annulment overview contains valuable information about the annulment process and also offers phone numbers for legal help offered at different locations by different providers.

You can also review Title 13 (Domestic Relations), Chapter 15 (Divorce and Annulment) of the Delaware Code to research annulment law.

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