What's the Difference Between Annulment and Divorce?

If you're thinking about ending your marriage, you might wonder whether it makes sense to seek an annulment or file for divorce. While both are legal procedures to end a marriage, the requirements and the end result are different. A divorce ends a legally valid marriage, while an annulment treats the marriage as if it never happened in the eyes of the law. Annulments are available only in limited situations and the legal requirements are stricter in most states.

Understanding the difference between an annulment and a divorce can affect everything from whether you qualify to how a judge handles the division of property, child custody, and child and spousal support. Here is an overview of how divorce and annulment work, when each is available, and what to expect from each process.

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 been legally married in the first place. If a couple wasn't legally allowed to get married—for example, if one of them was already married to someone else—an annulment is the correct procedure to declare a marriage was invalid from the start.

You must also have a legally acceptable reason (ground) for getting a 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." A few states require a period of separation for a no-fault divorce.

Learn more about the difference between no-fault vs. 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 note that this article discusses civil annulments, the legal process you go through in court, not religious annulments, which are granted by a religious institution according to its own rules and have no legal effect on your marital status. If you want to end your marriage in the eyes of the law, you must go through the courts, either by civil annulment or a divorce. Until you do, you are still legally married and can't legally remarry.

Grounds for an Annulment: Void vs. Voidable Marriages

Annulments are harder to get than divorces because you must prove a specific ground (legal reason) and the list of qualifying grounds is generally very short. To obtain an annulment, your marriage has to be either “void” or “voidable.”

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. One of the spouses was already married to someone else.
• Incest. A marriage between close relatives. (The definition of close varies from state to state.)

Because a void marriage was never legally valid, it technically doesn't exist as a legal matter to begin with. That said, getting an annulment to establish a clear legal record that the marriage is void is useful from a practical perspective.

Voidable Marriages

A “voidable” marriage is legally valid unless and until a judge declares otherwise. Unlike a void marriage, which is invalid from the start, a voidable marriage is valid until one of the spouses takes legal action to challenge it. If you believe you have grounds to annul a voidable marriage, you must go to court and ask a judge to invalidate it. The judge will then decide, based on the facts and your state law, whether the marriage should be annulled.

The most common examples of voidable marriages include:

• Impotence. One spouse is physically unable to consummate 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. Marriage age laws vary by state. Some ban marriages for anyone younger than 18 with no exceptions. Others permit minors to marry with the consent of their parents or a judge.
• Mental incapacity. Either spouse lacked the mental capacity to agree to the marriage. This could involve a spouse having a serious developmental disability or psychiatric condition, or a spouse who was too drunk or high to legally consent to marriage at the time the wedding took place.
• Fraud. The marriage is based on fraud that goes to the very essence of the marital relationship, not just a general lie or misrepresentation. For example, concealing an inability or unwillingness to have children, or entering a marriage solely for immigration purposes.

Even if you have valid grounds to annul a voidable marriage, you can lose the right by ratifying the marriage. Ratifying the marriage is the legal term for continuing to live together as spouses after you learn about the problem. For example, if you learn that your spouse committed fraud before the wedding, but you continue to live together as a married couple, a court will likely treat that continued cohabitation as ratification and deny your request for annulment. Once you've ratified a voidable marriage, divorce is your only legal option to end the marriage.

Other Differences Between Annulment and Divorce

Beyond the grounds, there are other significant differences between divorce and annulment.

Is There a Deadline to File for an Annulment?

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, a judge will divide your property and may award alimony (also called "spousal support" or "spousal maintenance") as part of the standard divorce process.

In an annulment, those divorce rules typically don't apply. However, some states allow judges to divide a couple's property or award some temporary spousal support in certain situations, such as when one spouse reasonably believed the marriage was valid.

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 procedural differences. 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.

If you're thinking of seeking an annulment, you would be wise to speak with a divorce 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.