The Basics of Annulment in Florida

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 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.

Florida is unique because its laws don't explicitly address annulment. However, Florida's appellate (higher level) courts have issued binding decisions about annulment, called "precedent," over the years. These decisions constitute Florida's annulment law. It is possible, though difficult and unusual, to get an annulment in Florida.

Grounds for an Annulment in Florida

Florida's appellate courts have identified a number of "grounds," or reasons, why you can annul your marriage. It's important to know that Florida makes a distinction between "void" marriages (marriages that were invalid from the instant they started) and "voidable" marriages (marriages that weren't necessarily invalid at the outset). Both void and voidable marriages can be annulled, but whereas all void marriages can be annulled, not every voidable marriage can be. In fact, a void marriage can't be rehabilitated or made legal even if it's what the couple desperately wants.

The grounds for annulment are:

• The marriage is void because it's bigamous (a spouse is legally married to more than one person), incestuous (the couple is closely related by blood or marriage), or because one spouse is permanently mentally incapacitated and unable to consent to marriage. Although these marriages are void by their very nature, it's still advisable to obtain an annulment.
• The marriage is voidable because 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 but temporary mental problem or was under the influence of intoxicating alcohol or drugs.
• The marriage is voidable because one of the spouses used fraudulent acts or misrepresentations to trick the other spouse into entering the marriage. Not all misrepresentations will qualify. A qualifying fraud goes to the essence of the marital relationship. For example, if Spouse A lied about having have a serious disease like tuberculosis, that lie wouldn't be a basis for annulment. However, if Spouse A married Spouse B but had no intent to live with Spouse B as a married couple, that could be the basis of an annulment.
• The marriage is voidable because one or both spouses only entered into the marriage because they were under duress (defined as extreme coercion or possibly even force).
• The marriage is voidable because one spouse is underage and entered the marriage without the consent of a parent or guardian.
• The marriage is voidable because one spouse is impotent and the other spouse didn't know it at the time of marriage.
• The marriage is voidable because one or both spouses entered into the marriage as a joke.

In Florida, marriages voidable because of fraud can be "ratified" (made valid) by the mere act of sexual consummation after the injured party becomes aware of the fraud, duress, or temporary lack of capacity which led to the marriage. For example, if a spouse entered into marriage while intoxicated but then had sexual relations with the other spouse after "sobering up," the marriage can't be annulled. The reasoning for this is that if the wronged spouse chooses to engage in a sexual relationship while knowing the truth, then the wronged spouse essentially waives any right to complain about the wrongdoing.

How Do I Get an Annulment?

You must get a court order to officially annul a voidable marriage, and it's recommended to get one to annul even a void marriage. Annulment papers must be filed in Florida's circuit courts, which sit in "chancery" (equity) and can hear annulment cases because they have equitable (corrective) powers. Annulment proceedings are governed by Florida's family law rules of procedure, so you'll need to become familiar with and follow them.

To initiate a divorce petition, you'll need to file and serve a petition for annulment. The petition needs to explain that the marriage is void or voidable, and the reason why.

If the other party (the defendant) doesn't agree with what you've said in the petition, the defendant has the right to file and serve a counterclaim for dissolution of marriage. If the defendant prevails on that counterclaim, the court would ultimately grant you a divorce rather than an annulment.

Florida presumes that marriages are legal and valid. For that reason, a person seeking to obtain an annulment faces a steep burden of proof and must provide strong evidence in favor of annulment.

Because there are so many financial and custodial implications involved in an annulment, it is highly recommended that you talk with an attorney before making any hard and fast decisions.

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 Florida, at least insofar as voidable marriages are concerned, because the law explicitly states that voidable marriages are valid for all purposes until they're annulled. Therefore, an annulment under these circumstances does not affect the legitimacy of children any more than a divorce would.

On the other hand, the children of a void marriage are not considered legitimate under Florida law, because a void marriage is never valid.

Regardless of whether a marriage is deemed void or voidable, the circuit court will make a decision about child custody, support, and visitation through a parenting plan.

Florida annulment law allows the circuit court to grant support pendente lite (temporary alimony) in annulment cases. It even allows judges to require the spouse with greater means to help the poorer spouse pay for attorney fees.

After an annulment is granted, neither of the former spouses can assert the property rights of a spouse. Neither can inherit from the other on the basis of marital status, and neither has a claim to the other's retirement, insurance, or other benefits. The court will not divide the couple's property as it would in a divorce. Instead, the couple has to divide their own property to the best of their ability and restore themselves to the financial position they were in as single people, with minimal help from the court.

Permanent alimony is not ordinarily awarded in annulment cases. However, there is precedent in Florida that if one spouse is an "innocent victim" of the other spouse's wrongdoing, the spouse suffering the wrong may be awarded permanent alimony and attorney fees as a matter of equity (fundamental fairness).

Resources

Florida Legal Services, Inc., offers free or low-cost legal aid to low income Floridians. Contact them to see if they can direct you to help if you're seriously considering an annulment.