If you’re wondering whether to get a divorce or annulment, you should understand the differences between them. Learn about the requirements, consequences, benefits, and drawbacks of annulment as compared to divorce.
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Divorce and civil annulment are two legal procedures for ending a marriage. After both annulment and divorce, the former spouses are free to remarry. But the requirements for annulment are strict—few marriages qualify. And there are other significant differences between the divorce and annulment, including the kinds of orders judges may issue in each proceeding.
Annulment vs. Divorce: Which to Choose?
That question assumes you'll actually have a choice between annulment and divorce. The reality is that the circumstances of your marriage may leave you with only one path to take.
What Is Divorce?
Divorce (or dissolution of marriage) is a court decree or judgment that ends a marriage. But before you can get a divorce, you must have had a legal marriage in the first place. If a couple wasn't legally entitled to get married—for instance, if one of them was already married to someone else—they won't be able to get divorced.
In addition to having a legal marriage, you must have a legally acceptable reason (ground) for divorce. In the past, that meant proving that one spouse engaged in certain types of wrongdoing, such as adultery, cruelty, or desertion. Now, however, all states allow you to choose a "no-fault" divorce. Typically, the no-fault divorce grounds are something like "irreconcilable differences" or "irretrievable breakdown of the marriage," although a few states require a period of separation for a no-fault divorce.
What is Annulment?
Annulment doesn't so much end a marriage as declare that it never existed from a legal standpoint. An annulment is based on the premise that your marriage wasn't valid in the first place.
It's important to point out when we're discussing annulment in this article, we mean civil annulment, not religious annulment. If you get a civil annulment through the courts, your religious group might recognize that as valid for its purposes.
That's not a two-way street. In the eyes of the state, the only way for you to annul your marriage legally is through the courts. If you don't get a civil annulment or divorce, you may not legally remarry. But you may get a religious annulment after a divorce—for instance, so that you can remarry in the church.
Grounds for an Annulment: Void vs. Voidable Marriages
It's more difficult to get an annulment than a divorce, because state laws on annulment allow only a few legitimate reasons to end a marriage this way. To obtain an annulment, your marriage has to be either "void" or "voidable." There's a major distinction between those two words, and that distinction can make the difference between a marriage that's inherently invalid and one that could be considered legitimate, depending on a spouse's actions after the wedding.
Void Marriages
A "void" marriage is inherently invalid. It never should have taken place under the law, and there's nothing anyone can do to change that fact. The most common examples of void marriages are:
- bigamy or polygamy—when one of the spouses was already married to someone else, and
- incest—a marriage between close relatives, as defined under state law.
Annulment is the only way to legally end a void marriage.
Voidable Marriages
A marriage that's "voidable" may be legally valid or invalid, depending on certain circumstances. You might have grounds for an annulment, but that doesn't automatically end the relationship. In cases of voidable marriages, you'll need to ask the court to determine whether the marriage is valid.
Depending on your state's laws, you might have grounds for annulling a voidable marriage in one of the following circumstances:
- Impotence. One of the spouses was permanently impotent when the marriage took place. But this isn't a valid reason for annulment if the other spouse knew about the condition at the time of the marriage.
- Duress. A spouse was under duress when the couple married. For example, you might see this when a spouse was threatened with harm if they didn't go through with the wedding.
- Underage marriage. A spouse was under the legal age to marry, under state law. But if the underage spouse affirms the marriage after reaching the legal age, the marriage can be valid.
- Mental incapacity. Either spouse lacked the mental capacity to agree to the marriage. This could be the case when a spouse has a serious intellectual or psychiatric disability, or when one or both spouses were so drunk or high that they didn't know what they were doing.
- Fraud. The marriage is based on fraud, such as when a spouse withholds critical information ahead of the wedding that might have affected the other spouse's decision to marry (such as being an alcoholic, having children, or being deeply in debt). But this wouldn't be a legitimate reason for annulment if the "innocent spouse" didn't move out after learning the truth or would've agreed to the marriage anyway.
As you can see, there are certain actions that could make a voidable marriage valid. Generally speaking, a judge wouldn't be likely to grant an annulment if a spouse became aware of facts that could have invalidated the marriage but affirmed the marriage anyway (such as by continuing to live as a married couple). In that situation, divorce would be the only option to end the marriage legally.
Other Differences Between Annulment and Divorce
Beyond the grounds, there are other significant differences between divorce and annulment, including:
- Is there a deadline? In some states, you must seek to annul your marriage within a certain period of time, depending on the ground for annulment. For instance, when you're filing for an annulment based on fraud, the time to act ("statute of limitations") may start when you found out the truth. But you may file for divorce at any time, as long as you meet the other requirements in your state.
- Will the judge divide your property or award alimony? In a divorce, you may always ask to have the judge issue orders dividing your marital property. Either spouse may also request alimony (also called spousal support or maintenance). Ordinarily, judges will not divide a couple's property in an annulment, and neither spouse will be entitled to alimony—which is why some people may prefer to get an annulment rather than a divorce. But depending on the circumstances and where you live, there might be a few exceptions to this general rule. In Illinois, for instance, a judge may decide in certain cases to make the annulment non-retroactive (meaning that the marriage would be considered invalid only from the time of the judgment). Then the judge would have the authority to divide the couple's property or award maintenance. (750 Ill. Comp. Stat. § 5/304 (2022).)
- What about children? Whenever married couples have minor children together, their divorce must address issues of child support and custody of their kids. The same is generally true in annulments, but there might be some tweaks. For instance, in some states you may need to establish the father's paternity and seek child support and custody orders in separate proceedings after you get an annulment.
Getting Help With an Annulment
It's usually fairly straightforward to get an annulment when your marriage is void under your state's laws. But annulment proceedings can be complicated if you think you have a voidable marriage. The laws in your state (including court opinions) determine whether the judge is likely to annul a voidable marriage, as well as whether the judge may divide your property, award alimony, or issue any orders regarding your children. If you're thinking of seeking an annulment, you would be wise to speak with a family law attorney who can explain how the laws in your state apply to your situation and whether you'd be better off seeking an annulment or a divorce.
