Annulment vs. Divorce: Which to Choose?

That question assumes you’ll actually have a choice. The reality is that there’s a significant difference between annulment and divorce, and the circumstances of your case may leave you with only one path to take.

What is Divorce?

Divorce is the court-ordered dissolution of a marriage. In order for it to be a viable process, the marriage must be legal, meaning that when the couple got married there were no existing facts that could have invalidated the marital bond.

What is Annulment?

When it comes to terminating a marriage, annulment doesn’t so much end it as declare that it didn’t exist in the first place. It's based on the premise that your marriage wasn’t valid. There are only a few legitimate reasons for a court to grant an annulment, making it more difficult to obtain than a divorce.

Grounds for a Divorce

In the past, the grounds (reasons) for a divorce were based exclusively on one spouse's “fault,” meaning you had to prove that a spouse was guilty of wrongdoing, such as adultery or cruelty.

Fortunately, divorce law has evolved, and states now provide “no-fault” grounds for dissolving a marriage, like “irreconcilable differences” or “incompatibility,” where no blame is assessed against either spouse.

Grounds for an Annulment

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 can be legitimized.

A “void” marriage is invalid on its face. It never should have taken place, and there’s nothing that can change that. Two common examples are marriages based on “bigamy” (one of the spouses was already married when the marriage occurred), and “incest” (the marriage is between close blood relatives). Annulment is the only recourse in these situations.

A marriage that’s “voidable,” on the other hand, can legally exist under certain circumstances. You may have grounds for an annulment, but that doesn’t automatically end the relationship. In cases of voidable marriages, it’s up to one of the spouses to request that the court determine the marriage’s validity.

Depending on your state’s laws, grounds for annulling a voidable marriage may exist if:

• One of the spouses was permanently impotent when the marriage took place. But note that this isn’t a valid reason if the non-impotent spouse knew about the condition at the time of the marriage.
• A spouse was under duress when the marriage occurred. You might see this where a spouse was threatened with harm if that spouse didn’t go through with the 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.
• Either spouse lacked the mental capacity to agree to the marriage. This refers to cases in which a spouse was suffering from a serious mental defect, and also to situations where a spouse is severely debilitated by alcohol or drugs.
• The marriage is based on fraud, such as where a spouse who is an alcoholic doesn’t reveal this to the other spouse prior to the marriage. But this wouldn’t be a legitimate basis for annulment if the other spouse would still have agreed to the marriage if the condition had been disclosed in advance.

As you can see from the above list, there are certain conditions that would render a voidable marriage valid. Generally speaking, if a spouse becomes aware of facts that could have invalidated the marriage, but ratifies (approves) the marriage (such as by continuing to live as a married couple, for example), it’s unlikely a judge will later grant an annulment. Instead, the marriage will be deemed legitimate, and divorce would be the only option to legally end the relationship.

Something else to be aware of is that some states may impose a statute of limitations on annulment requests. If you try to seek an annulment after that legal time period expires, you’ll be out of luck.

If you’re interested in the mechanics of how to annul a marriage, you should check your state court’s website, or consult with a local family law attorney.

Religious Annulments and Civil Annulments

You should note that a religious annulment isn’t the same as a civil annulment. If you get an annulment through the courts, your religion may recognize that as valid for religious purposes. But that’s not a two-way street. In the eyes of the state, the only way for you to legally annul your marriage is through the courts.

Some Additional Differences Between Annulment and Divorce

During your marriage, you and your spouse may have had children together. A child’s best interest is a court’s primary concern, so whether you’re pursuing an annulment or a divorce, a judge will address child support, custody, and visitation (parenting time).

But there can be differences between divorce and annulment when it comes to the issues of alimony (spousal support) and distribution of your property. In a divorce, these are viable topics of discussion. In an annulment proceeding . . . not necessarily.

Whether a court will address alimony and property distribution in an annulment depends on state law. There are states that will allow you to make an application for both, while some may allow one but not the other. Other states may prohibit the courts from ruling on either issue.

If you’re thinking about pursuing an annulment, it’s important that you familiarize yourself with the laws in your state.