The Basics of Annulment in Texas

People often don't understand what marriage annulment means, partly because of the difference between religious and civil annulments. In a religious annulment, a church tribunal or other religious body declares that a marriage wasn't valid in the eyes of the church. In a civil annulment, a judge declares that the marriage wasn't valid in the eyes of the law.

To confuse matters even more, Texas law makes a distinction between annulment and a court declaration that a marriage is void. This article focuses on civil annulments and legal proceedings to have a marriage declared void in Texas.

What Are the Grounds for an Annulment or a Declaration of Void Marriage in Texas?

In Texas, there are two categories of marriages that may be declared void: marriages that are voidable—meaning that judge may annul those marriages under certain circumstances—and marriages that are automatically void because they're illegal in Texas. There are different legal reasons ("grounds") for voidable and void marriages.

Grounds for Declaring a Marriage Void

If a marriage is prohibited under Texas law, it's automatically void—with or without a legal proceeding to make that determination. However, you may file a petition for a declaration that the marriage is void, in order to clarify your marital status and ask the judge to issue certain orders (more on that below).

In Texas, the following types of marriages are void:

• Incestuous marriage—marriage between close relatives (including ancestors, descendants, siblings, aunts, uncles, nieces, nephews) or between a stepparent and current or former stepchild. Tex. Fam. Code §§ 6.201, 6.206 (2022).)
• Underage marriage—at the time of the marriage, either spouse was younger than 18 and didn't have a court order of emancipation. (Tex. Fam. Code § 6.205 (2022).)
• Bigamy or polygamy—at the time of the marriage, either spouse was still married to someone else. (Tex. Fam. Code § 6.202 (2022).)

Even though void marriages are invalid from the start, Texas law provides that bigamous marriages will become valid if the spouse who was already married gets a divorce in the earlier marriage and, after that, continues to live with the later spouse as a married couple.

Grounds for Annulment of Voidable Marriages

You may seek to have a marriage annulled in Texas for one of the following reasons:

• Fraud, duress, or force—if you were misled, coerced, or forced into getting married. To qualify as a ground for annulment, the fraud must be a misrepresentation that directly affects the decision to get married. For instance, one court found that a husband could get an annulment based on his wife's lies about loving him and wanting a long-term relationship and children, when she really only wanted to get a green card based on the marriage. (Tex. Fam. Code § 6.107 (2022); Desta v. Anyaoha, 371 S.W.3d 596 (Tex. App. 2012).)
• Incapacity to consent to marriage—if you were so drunk or high on drugs when you got married that you couldn't legally consent to the marriage, or if either you or your spouse didn't have the legal mental capacity to consent to and understand the marriage. (Tex. Fam. Code §§ 6.105, 6.108 (2022).)
• Impotence—when you didn't know at the time of your marriage that your spouse was permanently unable to have sexual relations, for physical or mental reasons. (Tex. Fam. Code § 6.106 (2022).)
• Marriage in violation of Texas waiting periods for marriage—if you didn't know that your spouse had been divorced less than 31 days before your marriage ceremony (in violation of the 30-day waiting period in Texas for remarriage after divorce), or you had your wedding ceremony before the expiration of the 72-hour waiting period after getting your marriage license. (Tex. Fam. Code §§ 2.204, 6.109, 6.110, 6.801 (2022).)

A historical note: Some underage marriages (involving 16- or 17-year-olds) that took place before September 2017 were voidable under Texas law, rather than automatically void. By now, however, there's no way to get an annulment in those marriages. That's because the law required that parents or guardians filed petitions to annul those marriages before the minor's 18th birthday. (Tex. Fam. Code §§ 6.103, 6.205 (2022).)

When Staying in the Marriage Means You Can't Get an Annulment

With some voidable marriages, you won't be able to get an annulment in Texas if you voluntarily continued to live with your spouse as a married couple after the condition that could invalidate the marriage no longer existed—for instance, after you:

• were no longer intoxicated or otherwise unable to consent to marriage
• were no longer being coerced into the marriage
• discovered that your spouse had misled you into getting married, or
• learned that your spouse was permanently impotent.

(Tex. Fam. Code §§ 6.105, 6.106, 6.107, 6.108 (2022).)

Time Limits for Annulment in Texas

Texas sets a time limit on requesting an annulment of some voidable marriages:

• For marriages that violated the 30-day waiting period for remarriage after divorce, you must file for annulment within one year after you were married.
• For marriages that violated the 72-hour waiting period after getting license, you must request an annulment within 30 days after the ceremony.

(Tex. Fam. Code §§ 6.109, 6.110 (2022).)

How to Get an Annulment or Declaration of Void Marriage in Texas

Many of the procedures for getting an annulment or declaration of a void marriage are similar to the process of filing for divorce in Texas, but the residency requirements are different.

Residency and Venue Requirements for Annulments in Texas

If you want to get an annulment in Texas or a declaration that your marriage was void, you must meet one of the residency requirements:

• you were married in Texas, or
• either you or your spouse lives in Texas and considers the state your permanent home.

(Tex. Fam. Code §§ 6.306, 6.307 (2022).)

Filing and Serving Annulment Papers

You'll file either a petition to annul a marriage or a petition to declare a marriage void. If you and your spouse have children, you'll also need to file a form for a "Suit Affecting the Parent-Child Relationship." You should file the petition and other paperwork in the county where:

• all or a substantial portion of the events that led to the marriage happened, or
• your spouse lived when you got married.

(Tex. Civ. Prac. & Rem. § 15.002 (2022).)

Check with the local district clerk to find out which courts in the county handle annulments and void marriage proceedings, as well as any local rules and procedures that apply in these cases. You can find contact information for district and county clerks on the Texas Judicial Directory.

You'll need to pay a filing fee (which varies from county to county), unless you apply and qualify for a fee waiver.

After you've file the paperwork, you must either have your spouse sign a waiver of service form (to acknowledge having received copies from you) or arrange to have a sheriff or private process server hand-deliver the documents to your spouse.

Effect of Annulment or Declaration of Void Marriage vs. Divorce

Divorce (or "dissolution of marriage") ends an existing marriage. When you get an annulment or have a marriage declared void (more on that below), it's as if the marriage never existed.

However, Texas judges may issue some of the same kinds of orders in annulments and void marriage proceedings as in divorces. For example:

• When the couple in a void or voidable marriage has children together, the judge will need to decide the issues of child custody (known as "conservatorship" in Texas law) and child support. The children will have the same rights as they would if their parents were divorced.
• In annulment proceedings, judges have the same legal authority as in divorces to divide the couple's property and award alimony (known as spousal maintenance in Texas) under the same standards as in a divorce.
• In a void marriage proceeding, a "putative" spouse—meaning one who sincerely believed in the validity of the marriage and didn't know the facts that would make it legally void—may have the same property rights as a spouse in a legal marriage and may be entitled to alimony after the judge declares the marriage void.

(Tex. Fam. Code §§ 7.001, 8.060, 151.001 (2022).

Do Both Parties Have to Agree on an Annulment?

You don't need your spouse's consent or signature to request an annulment or a declaration to declare your marriage void. But you will have to give testimony (and sometimes other evidence) to convince a judge that your marriage is void or voidable. Your spouse has the right to come to the court hearing and dispute your claims. So if your spouse doesn't want an annulment or claims that your marriage isn't void, you should speak with a family law attorney.

However, if you and your spouse can agree—especially if you don't have children—the process of getting an annulment or a declaration of void marriage should be easier. Texas Law Help provides a guide for annulling or voiding marriages, including instructions and forms for do-it-yourself agreed annulments for couples who don't have children and haven't acquired marital property other than personal effects.

There's another option if your spouse isn't going to contest the annulment but also isn't going to cooperate and sign the papers. You may file for a default annulment. And if you don't have children together, you can use the do-it-yourself forms and instructions for default annulment from Texas Law Help.