Divorce vs. Annulment: What Is the Difference?

When it comes to ending a marriage, there are two main options: divorce and annulment. But what is the difference between the two?

Typically, when people divorce, they are still recognized as having been in marriage previously, but that isn’t the case with an annulment. In fact, an annulment treats a perceived marriage as though it never existed.

The whole concept of an annulment is based on the ground that the marriage wasn’t legitimate or legal, to begin with. So, you need to be careful with how you approach the entire issue.

This guide explores the primary differences between divorce and annulment to help you figure out which one is the right option for you. So, let us get started.

Read Also: Do I Need to Move Out Before I Can File for Divorce in Illinois?

What Is Divorce?

In simple terms, divorce refers to a court-ordered dissolution of a marriage. For a divorce to be viable, the marriage must be legal and fully recognized by both parties involved. It means that when the couple got married officially, there were no existing facts that could have otherwise invalidated the marital bond.

The two common types of divorce are fault and no-fault divorce. In a no-fault divorce, a marriage can be dissolved without any party being labeled “guilty” or the cause for the break-up.

If there is no guilty party, some states require the involved parties to go through a period of legal separation before the divorce is finalized. For this reason, some couples seek to expedite the process by pursuing the traditional “fault” divorce.

Read Also: 10 Reasons to Use Mediation for Your Divorce

Fault divorce can only be granted when one of the parties involved proves adequate grounds for the process. However, the grounds for fault divorce vary significantly from state to state. Common grounds for fault divorce include desertion, adultery, physical/emotional abuse, incurable mental illness, and conviction over crime.

Your state law and particular situation will play a critical role in determining whether your divorce will be simple or complex. Take time to familiarize yourself with your state’s divorce laws before you get started.

What Is Annulment?

In simple terms, an annulment is an order declaring a marriage invalid. In other words, it declares that the marriage never happened. So, in this case, the marriage isn’t ended because it never existed, to begin with.

Your marriage must either be “void” or “voidable ” to obtain an annulment.” These are two different terms that can make a significant difference in illegitimatizing a marriage.

Technically, a “void” marriage is completely invalid on its face. The marriage should never have happened, and nothing can change that fact. For instance, marriages based on incest or bigamy are automatically void.

Bigamy refers to a situation where one of the parties was already married to another person at the time of the marriage, while incest refers to marriage between blood relatives. Annulment is the only recourse in such circumstances.

On the other hand, a “voidable” marriage may legally exist under certain grounds. In such a case, you may have valid grounds for an annulment, but it doesn’t automatically end the relationship.

In cases where the marriage is “voidable,” one of the parties may request the court to determine the validity of the marriage.

For instance, if one of the spouses was infertile at the time of the marriage but didn’t inform the other party, the marriage may be dissolved. Also, if one of the spouses lacked the mental capacity to consent to the marriage, the union could be voided.

Generally, many conditions can render a marriage voidable. Therefore, it is up to one of the parties to demonstrate to the court why they want an annulment.

Types of Annulment

An annulment can either be civil or religious. A civil annulment is usually granted by a presiding judge in a court system. When the judge grants permission for an annulment, it means the marriage never existed.

Either spouse can seek civil annulment by filing a petition with a family court and stating their grounds for annulment. The most commonly cited grounds for civil annulment include failure to consummate the marriage, fraud/misrepresentation, mental incompetence, underage marriage, and bigamy.

Some annulment laws stipulate specific time limits within which you can file for civil annulment. The time limits provided don’t necessarily depend on how long you have been married but the grounds of annulment.

For instance, if you want to annul your marriage on the grounds of fraud, it doesn’t matter how long you have been married. What matters is when you found out about the fraud.
The other type of annulment is religious, issued by a religious tribunal or church other than a court. A religious annulment cannot terminate a legal marriage.

In fact, obtaining a religious annulment doesn’t guarantee that a family court will automatically issue a civil annulment to end the marriage. Likewise, a religious institution may refuse to recognize a civil annulment.

Differences Between Divorce and Annulment

Unlike annulment, a divorce doesn’t invalidate a marriage; it ends it. So, the issue of a void or voidable marriage doesn’t arise.

When it comes to property division, a judge will divide marital property and debts if the two parties divorce. However, a judge can’t divide property or debt in an annulment because the marriage didn’t exist in the first place. So, there is no marital property or debt to divide.

The issue of child support also comes up when two parties that have been staying together and have children decide to part ways. Since an annulment invalidates a marriage, it also erases one spouse’s rights to seek child support or alimony from the other party.

Generally, you waive your constitutional right to seek spousal support from the other party when you file for an annulment instead of divorce. So, if you have a child/children from the union, you will be safe seeking a divorce other than an annulment.

Are There Any Similarities Between Annulment and Divorce?

Divorce and annulment are similar because they both seek to end a marriage. Whether you obtain an annulment of a divorce, the outcome is pretty similar; you will be single and free to remarry.

Similarly, a spouse who seeks an annulment has the same burden of proof as one seeking a fault-based divorce. The party that files for annulment or fault divorce must provide the court with facts showing that the union meets the criteria for granting divorce or annulment.

Conclusion

An annulment is different from divorce in many ways. So, if you want to end your marriage, weigh all your options and decide which one is best for you. You can either file for divorce or annulment, depending on your circumstances.

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