What's the Legal Difference Between Annulment and Divorce?

What's the Legal Difference Between Annulment and Divorce?

by Louise Banks, January 2020

There are two ways to legally end a marriage—annulment and divorce. An annulment is a legal procedure which cancels a marriage. Annulling a marriage is as though it is completely erased, legally, and it declares that the marriage never technically existed and was never valid.

What's the Legal Difference Between Annulment and Divorce

A divorce, or legal dissolution of a marriage, is the ending of a valid marriage, returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding grounds for marriage annulment or divorce, certain requirements apply nationwide.

An annulment case can be initiated by either party in a marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy - either party was already married to another person at the time of the marriage

Forced Consent - one of the spouses was forced or threatened into marriage and only entered into it under duress

Fraud - one of the spouses agreed to the marriage based on the lies or misrepresentation of the other

Marriage Prohibited By Law - marriage between parties that based on their familial relationship is considered incestuous

Mental Illness - either spouse was mentally ill or emotionally disturbed at the time of the marriage

Mental Incapacity - either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent

Inability to Consummate Marriage - either spouse was physically incapable of having sexual relations or impotent during the marriage

Underage Marriage - either spouse was too young to enter into marriage without parental consent or court approval

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a no-fault divorce or a fault divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the "guilty party" or the cause for the marital break-up.

Many states now offer the "no-fault" divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a "guilty party," some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, "fault" divorce.

A "fault" divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:

Adultery - one or both spouses engages in extramarital relationships with others during the marriage

Desertion - one spouse abandons the other, physically and emotionally, for a lengthy period of time

Physical/Emotional Abuse - one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution and help you determine whether an annulment vs. divorce is right for you.

If you're considering filing divorce, LegalZoom can help you file an uncontested online divorce. A LegalZoom divorce package includes state-specific divorce documents for both spouses, a marital settlement agreement, and a parenting plan for specifying custody arrangements and visitation schedules.

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