Annulment

An annulment is a judicial declaration that a marriage never occurred, as opposed to a divorce, which declares that a marriage is dissolved. The grounds for obtaining an annulment range from violating the waiting period after a marriage license was obtained to being under the influence of alcohol or drugs at the time of the marriage ceremony. A marriage cannot be annulled after the death of one of the spouses.

SIDEBAR: An annulment that has been granted by a church or religious entity is not a legal annulment. A legal annulment requires a judicial decree. The parties to an annulment granted by a religious entity are not free to legally remarry until they obtain an annulment through the court.

TIP: A petition to annul a marriage must be filed in the state in which the marriage ceremony took place. There is no residency requirement. For instance, a wife must reside in a state for 6 months before she can file for divorce there; however, she must file for an annulment wherever the marriage occurred whether she still lives there or not.

My wife and I have been married only a month. Because of the duration of our marriage, can I get an annulment instead of a divorce?

No. The brief length of your marriage is not a recognized ground for obtaining an annulment. Unless you have a legal basis for an annulment, you and your wife must seek a divorce.

Can I get my marriage annulled if I am pregnant?

Yes. The fact that you are pregnant does not prohibit you from obtaining an annulment if the requisite grounds exist.

TIP: Courts generally do not grant annulments where children have been born of the marriage or are expected, because that indicates that the couple lived together voluntarily at some point. Obtaining an annulment generally requires that the couple not cohabitate once the basis for an annulment is discovered.

Can I receive alimony after getting an annulment?

Yes. However, the alimony will be temporary. Permanent alimony or support payments are ordered when a marriage is dissolved only. The annulment is a declaration that the marriage never existed and therefore such payments are not available.

Is there a waiting period after an annulment is granted before I can remarry?

No. Typically laws only require parties to a divorce to wait a period of time before remarrying.

Grounds

There are many different grounds for annulment. The length of the parties’ marriage is not relevant as to whether or not an annulment will be granted. The pivotal question is whether the spouses continued to voluntarily live together after a basis for an annulment was discovered.

Duress or force

To prove that a person was under duress or forced into a marriage (as a basis for an annulment) there must be a wrongful act or unlawful threat which overcomes the will of a person.

EXAMPLE: A man that threatens to injure a woman unless she marries him is acting wrongfully. If she is in such fear of great bodily harm that she feels she must marry him, then her free will is “overcome” and the marriage may be annulled.

SIDEBAR: If the party seeking the annulment is voluntarily living with her spouse, she cannot claim duress or force. She will have to obtain a divorce instead.

SIDEBAR: If you were forced into a marriage yet decided to stay and live with your spouse, you have ratified the marriage and it cannot be annulled on the grounds of duress.

My elderly grandfather’s girlfriend convinced him to marry her. Can I have the marriage annulled on the grounds of duress?

No. Duress or force must be proved by clear and convincing evidence. Unless you have facts that tend to show your grandfather was threatened or his girlfriend committed a wrongful act, duress is not a ground for annulment.

TIP: Persuasion or pressure is not duress.

My girlfriend’s mother threatened to go the police and file charges of statutory rape unless I married my girlfriend. Can the marriage be annulled on the grounds of duress?

No. If you had the opportunity to consult with an attorney after the mother’s threat and before the marriage, you could have received some guidance and avoided the marriage. In other words, you were not being compelled against your will to marry the girl. Additionally, the mother’s threat is not unlawful if your girlfriend was underage and the two of you engaged in sexual relations.

I’m pregnant and told my boyfriend that the baby was his child in order to get him to marry me. Can he get our marriage annulled on the grounds that I used duress and forced him to marry me?

No. Because of your lie, your boyfriend may have felt he had a moral duty to marry you, but he was not forced to marry you. Your statement was untruthful, but it was not necessarily unlawful.

Capacity

The more common ground for annulment is lack of legal capacity to marry. Lack of capacity comes in many forms, including:

  • age – persons who are under 18 and who are marrying without the consent of their parents do not have the capacity to legally marry.
  • current marriage – persons who are married to someone else when they marry again do not have the capacity to enter into another marriage.

TIP: Remarriage after divorce cannot occur until after a certain time period (typically 30 days). A person who marries before the waiting period does not have the capacity to marry and an annulment can be obtained by the spouse who was unaware of the divorce.

  • blood relationship – immediate family members may not marry one another (parents, grandparents, siblings, aunts and uncles). The marriage is illegal and an annulment can be obtained at anytime.
  • mental incapacity – a person who has a mental defect which makes him incapable of consenting to marriage or understanding the nature of marriage can obtain an annulment.

SIDEBAR: Mental incapacity to marry takes two forms. The person who cannot consent suffers from such an extreme mental disease or defect that his guardian must file for the annulment on his behalf.

On the other hand, a person can suffer from a mental defect at the time of the marriage only and later return to his normal state of awareness. For example, if you can show that you were unaware of your mental illness at the time of your marriage, you can request an annulment from the court. Some laws refer to this ground as “temporary insanity.” This is similar to seeking an annulment because of intoxication at the time the marriage took place.

  • intoxication – couples that marry when one or both of them are under the influence of alcohol or drugs can obtain an annulment as long as they did not live together after the intoxicating effects wore off.

My father has Alzheimer’s disease. Can his recent marriage be annulled?

Yes. If the disease has progressed to the extent that his physicians believe that, at the time of the marriage, he was no longer able to properly care for himself, that his memory was failing and that he was becoming unaware of his surroundings, then your father did not have the mental capacity to marry.

My sister has Down’s syndrome. Can her marriage be annulled on the grounds of mental incapacity?

No. The fact that she has Down’s syndrome does not automatically make her mentally incapable of entering into a marriage. Unless you can show that she did not understand that she was getting married and the consequences of marriage, mental incapacity is not a ground for annulling her marriage.

My son has been hospitalized many times for mental illness, is under the care of a psychiatrist and I am his court-appointed guardian. Are there grounds for annulling his recent marriage?

Yes. If you were able to obtain a guardianship based on his incompetency, then your son does not have the mental capacity to consent to marriage and you can seek an annulment.

TIP: To serve as a basis for an annulment, the mental incapacity must exist at the time the marriage took place. Prior or subsequent mental illness is not a valid basis.

During a state of deep depression, I agreed to marry my boyfriend. I’m now on anti-depressant medication and realize I made a terrible mistake. Can I have the marriage annulled?

Yes. If you did not know you were chronically depressed or have reason to believe that you were, the marriage can be annulled on the basis of your mental incapacity at the time of the marriage.

TIP: If you allege mental incapacity at the time of the marriage, you cannot have voluntarily lived with your spouse since you have recovered your mental faculties.

How intoxicated do I have to have been at the ceremony to have a marriage annulled?

You must have been so intoxicated at the ceremony that you were incapable of understanding that a marriage took place.

SIDEBAR: The courts often look for evidence of intoxication in the events that occurred after the marriage. For example, a person who wakes up the next day without any memory of where she is or that she got married can obtain an annulment. A person who was in a “drunken stupor” when he got married is intoxicated enough to receive an annulment. Additionally, attempts by the person to immediately investigate, rectify and “cancel” (calling a lawyer, for instance) the marriage indicate that he was so intoxicated that he was not capable of deciding to enter into a marriage.

Fraud

In order to establish fraud as basis for annulment, there must be a:

  • a false representation made by the spouse;
  • that is material to the marriage;
  • to induce a marriage;
  • which the other spouse relied on as the truth; and,
  • acted on by entering into the marriage.

The person making the representation must know that his representation is false. For example, there is no fraud if a man promises to have children but did not know he was sterile.

Additionally, the statement has to be made with the intent to get the other person to enter into a marriage. A man’s false statement about his wish to have children is not fraudulent unless he made it with the intent to convince a woman to marry him. False statements that are made on a date or in casual conversation cannot be later characterized as fraud. However, that same false statement made during premarital counseling is fraudulent.

False statements that are not material to a marriage, i.e. that do not go to the heart of the marriage, are not fraudulent. For instance, claims of famous ancestors, a college education that does not exist, or even lack of sexual experience do not impact the core of a marriage.

My wife did not tell me before we got married 5 years ago that she had been married and divorced several times. Can I have our marriage annulled on the grounds of fraud?

No. Annulments are typically not granted on the basis of fraud when you have lived with your spouse for some time and consummated the relationship. You might have obtained an annulment when you first married, but at this point a court would be reluctant to find that her prior marriages are enough to declare that your marriage never existed.

My husband married me when he was still married to his first wife. She has since died, some years after my discovery. Can I get an annulment?

No. If you continued to live with your husband as man and wife after the first wife’s death, then your marriage is no longer subject to annulment. By continuing to live with your husband, your void marriage “ripened” or evolved into a valid common law marriage.

SIDEBAR: Void marriages, i.e., marriages that can be annulled, can be converted into common law marriages that must be dissolved by divorce. For example, while it is possible to obtain an annulment at 17 years of age, once the spouse turns 18, she must file for divorce.

I work overseas and my wife married me with the understanding that she would live overseas with me. She has since decided to move back to the United States. Can I have our marriage annulled because of fraud?

No. Your wife’s decision to return home is not fraudulent unless you can prove that, at the time of your marriage, she married you with no intention of living overseas. Her later decision to live in the United States rather than overseas is not grounds for an annulment.

I’m a physician and my husband promised to do all the housework, cooking and shopping because he works from home. Can I get an annulment now that he refuses to do any of the things he promised?

No. Although your husband broke his promises, his failure to do as he said does not amount to fraud.

SIDEBAR: Fraud, when used as grounds for an annulment, must go to the “heart” of the marriage. For example, a husband’s agreement before marriage to have children and his later refusal, go the heart or essence of a marriage so that he has committed fraud. Failing to do chores or pay bills are not acts of fraud.

My wife did not tell me that she was an alcoholic before our marriage. Can I get an annulment because she concealed her alcoholism?

No. Unlike drug addiction, your wife’s alcoholism is not a crime, and her concealment of her problem is not fraud. You must seek a divorce instead.

SIDEBAR: Courts do not grant annulments merely because a person fails to disclose their bad temper, extravagant or miserly spending, drinking habits, bad hygiene or other unattractive and annoying traits.

My husband concealed the fact that he has a debilitating disease when we married. Can I obtain an annulment?

Yes. Your husband’s disease has increased your duties to him as a spouse without any prior knowledge on your part. This failure to tell you about his disease goes to the heart of the marriage, and he defrauded you. Household income and expenses, your ability to be employed full-time, and ability to take care of your children have been directly affected by the disease which he concealed.

SIDEBAR: Fraud is only available as a ground for annulment to the innocent spouse. Once the innocent spouse learns of the fraud, she must cease cohabitating with her husband. If she continues to live with him, she is no longer an innocent spouse because she is now aware of the nature and facts of the fraud.

My husband married me with no intention of consummating the marriage. Is this grounds for an annulment?

Yes. Your husband deceived you regarding a basic part of marriage. You can obtain an annulment because of his refusal to consummate the marriage.

TIP: Concealment of sexual preference from a spouse is fraud that goes to the heart of a marriage and is grounds for an annulment.

TIP: Concealment or misrepresentation of religious views can be usually a ground for annulment.

Untimely Marriage

Laws prohibit marriage within 72 hours after a marriage license was issued. Annulment on these grounds permits parties who have married hurriedly and without thought, but who have no other grounds, to obtain an annulment rather than a divorce. A request for annulment based on untimeliness typically is required to be filed within 30 days of the marriage.

TIP: Marrying before the waiting period is up does not automatically invalidate your marriage.

The marriage can also be annulled for untimeliness if one of the parties married within the waiting period after a divorce is granted (typically 30 days) and the new spouse was unaware of the recent divorce.

TIP: Concealed divorce, as a basis for an annulment, must be alleged within a year after the marriage ceremony. After a year, it is assumed that the new spouse became aware of the divorce at some point in time.

Impotency

If one of the spouses was permanently impotent (for physical or mental reasons) at the time of the marriage and the other spouse was unaware of the impotency, an annulment will be granted. The spouses cannot have lived together once the impotency was discovered. A couple that continues to cohabit after discovery of impotency will have to seek a divorce instead of an annulment.

Desertion

Desertion is not a ground for annulment unless the spouse abandoned the marriage immediately after it occurred. For instance, a wife’s desertion of her husband after a year of marriage is a ground for divorce rather than annulment. However, in the situation where the wife abandoned the husband immediately after the marriage took place, the husband can ask for an annulment on the basis of fraud since it appears the wife never intended to live with him.

Effect of Annulment

In annulment cases, the court may decide issues concerning the custody of children of the marriage and require the payment of child support and spousal support. An annulment can also have unexpected consequences with regard to taxes and alimony.

Taxes

The IRS has concluded that couples who have their marriage annulled do not have the right to file a joint tax return for the years they were married. The IRS follows the logic that since the marriage never existed the parties incorrectly filed joint returns. The couple must refile any joint tax returns under the rules for unmarried (single) persons.

Support Payments

After an annulment, a spouse may be entitled to support payments (spousal maintenance) for a period of time.

Alimony

By law, alimony paid to an ex-spouse terminates if the ex-spouse remarries. In cases where that second marriage is annulled, there is an issue of whether alimony should be reinstated.

The person paying alimony no longer has an obligation to his ex-spouse when she marries. However, in extenuating circumstances, alimony has been reinstated when the ex-spouse’s marriage is annulled. Reinstatement of alimony depends on the facts of each case that led up to the annulment. For instance, a woman receiving alimony from her ex-husband may have the alimony reinstated after her second marriage was annulled where she married the man after knowing him only a few weeks, then he drained her bank accounts and disappeared.

If our marriage is annulled, are our children illegitimate?

No. The law clearly provides that children of an annulled marriage are legitimate.

Void/Illegal Marriages

Void or illegal marriages are marriages that do not exist in the eyes of the law. Spouses in a void marriage do not have any spousal rights. For example, the wife of a man already married cannot claim her husband’s estate when he dies. Since he was married at the time of their marriage, the marriage is void.

Theoretically, these “non-existent” marriages would not require a judicial decree dissolving the marriage, but obtaining an annulment resolves any legal issues that might arise regarding whether or not the parties are single and free to marry again.

SIDEBAR: Same sex marriages are void in some states. For instance, the California Supreme Court has declared marriages that occurred because a license was issued in San Francisco invalid.