Video #04 – Divorce vs. Annulment

Video Transcript

Welcome to

Christina:  This is Christina.

Ed:  This is  Ed.  Today, we are going to discuss the differences between a divorce and an annulment.

Christina:  Some people file for a divorce and some file for an annulment.  How is an annulment different from a divorce?

Ed:  A divorce judgment dissolves a marriage.  An annulment is when the court issues a judgment that says your marriage is nullified like the marriage didn’t happen.

Christina:  Are there different types of annulments?

Ed:  Yes.  There are two types of annulments.  One type says your marriage was void from the very beginning.  And the other type says your marriage was valid, but it can be voided.

Christina:  How do I know which of the two types of annulments I should get?

Ed:  It depends on the grounds you use to get the annulment.

Christina:  What are the grounds for getting an annulment?

Ed:  Let’s start with what are not valid grounds for an annulment. Many people think getting an annulment has to do with the length of the marriage.  They think that if the marriage was very short, it can be annulled.  The length of the marriage is not a valid basis for an annulment.

Christina:  What are the grounds for the type of annulment where the marriage was void from the beginning?

Ed:  There are two grounds for this type of annulment: 1) incest; and 2) bigamy.  Examples of incest would be a brother that married a sister; an uncle that married a niece;  or an aunt that married a nephew.  Bigamy is when you married one person and, later you marry a second person, but without first getting divorced from spouse number one.

Christina:  What are the grounds for the second type of annulment, where the court says your marriage was valid, but can still be voided?

Ed:   There are six grounds for this type of annulment:

1) you were underage at the time of the marriage.  How old you have to be to get married varies from state to state.  For most states, the age is 18.  You can get married younger than 18, but usually, you will need the consent of at least one parent and oftentimes you will also need a court order.  These are the rules for California.  Some states have rules that set a minimum age requirement.  For example, some states won’t permit you to marry if you are younger than 16.  In some states, the minimum age is 14.  Interestingly, most states don’t have any minimum age.  If you were underage at the time of marriage, but after you turn 18, you freely cohabit with your spouse for a substantial period of time, your forfeit this ground as a valid ground for an annulment.

2)  The second ground for annulling a marriage is that there was a prior existing marriage or domestic partnership.  This sounds like bigamy, but it is actually a bit different.  We are talking about a situation where you married one person and then they disappeared for five years or more and are presumed dead.  You get married a second time and later the first spouse shows up.

3) A third ground is your spouse is of unsound mind.  We are not talking about someone that is sane at the beginning of the marriage but later becomes insane.  That may be grounds for a divorce, but not an annulment.  We are talking about an unsound mind at the time of the marriage ceremony such that one or both parties did not understand the nature of the contract they were entering into or the obligations of marriage.  For example, perhaps you went to Vegas, got very drunk, and went through a marriage ceremony.  You were so drunk, you didn’t know what you were doing.  After you get sober, if you freely cohabit with the other person for a substantial period of time, you forfeit this as valid grounds for an annulment.

4) The fourth ground for annulling a valid marriage is fraud.  This is far and away the most common ground used to get an annulment.   When you entered into the marriage, there was an element of fraud involved and the fraud goes to the heart of the marital relationship.  Let me give you some examples.  Before you get married, you and your spouse discussed having children.  Your spouse tells you they want children.  After the marriage, you learn that your spouse does not want children and never wanted children.  Having children goes to the heart of the marital relationship and thus, this type of misrepresentation will justify an annulment on the grounds of fraud.  A second example, before you get married, your spouse had an affair with someone else.  Your spouse promises the affair is over.  After your marriage, your spouse continues with the affair.  This type of misrepresentation goes to the heart of the marital relationship and will justify an annulment.  Another example, you get married and on your honeymoon, your spouse informs you that they never want to have sex.  This may seem bizarre, but stuff happens.  Since sex goes to the essence of the marriage, this would be grounds for an annulment.

What are some examples of fraud that will not work?  Assume your spouse told you they were wealthy before the marriage, but after you marry, you discover your spouse is broke.  This type of fraud will not support an annulment.  Assume your spouse told you they were a virgin before the marriage.  On your honeymoon, you discover they are not a virgin.  This is not a sufficient type of fraud to support an annulment.  Another example.  When you get married, your spouse leads you to believe they have a good job, are hard-working, and a neat people.  After the marriage, you find out they are unemployed, lazy, and rarely shower.  The fact that you thought you were marrying a prince but ended up with a toad, will not support an annulment.

5) The fifth ground for annulling a valid marriage is forced.  This would be like a shotgun wedding.  You get your girlfriend pregnant and her dad then threatens to shoot you unless you get married.  Again, if you freely cohabit with your spouse after the threat goes away, you forfeit this ground.

6) The last ground for annulling a valid marriage is physical incapacity.  This means that a spouse is incapable of engaging in sexual relations and the problem is incurable.

Christina:  Why would someone want an annulment as opposed to a divorce?

Ed:  There can be different reasons.  A common situation is a young woman comes into the office after a short marriage and does not like the idea of telling people, such as a new boyfriend, they are divorced.  If your marriage was annulled, you are not divorced.

Christina:  Can it be harder to get an annulment than a divorce?

Ed:  Yes.  In an uncontested divorce or a default divorce, you can get your divorce judgment without ever setting foot in a courtroom.  It is just a matter of filing the proper paperwork with the court.  However, an annulment typically requires at least one court appearance where you testify about the grounds for the divorce.  These annulment hearings are usually easy if the annulment is not contested.  The court does not care if you get divorced or have the marriage annulled.  If you testify about a certain kind of fraud as grounds for the divorce, the judge is not going to cross-examine you.   In most of these uncontested annulment cases, the couple is going to meet and discuss the grounds to be used to get the annulment and agree that the matter won’t be contested.

Christina:  If you to read more about annulments, go to the home page.  Look at the list of “Featured Topics” that are set forth on the left side of the home page, hover over “Preliminary Considerations” and then click on the subtopic entitled, “Annulment”.


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