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.
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.
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.
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.
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.
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:
Annulment is the only way to legally end a void marriage.
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:
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.
Beyond the grounds, there are other significant differences between divorce and annulment, including:
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.