By Divorce.com staff
Updated Sep 22, 2022
Divorce and annulment are both ways of ending a marriage. Divorce is the method most couples need to pursue. Some teams may be eligible for an annulment. Divorce and annulment work differently. An annulment may be a better option depending on the circumstances of your marriage and the timing.
What Is an Annulment?
An annulment is a legal process that renders a marriage invalid and strikes it from the record. There are very few circumstances under which a legal annulment will be granted.
How Is an Annulment Different From a Divorce?
A divorce acknowledges that a marriage existed. During a divorce, property, and resources can be divided, and arrangements can be made for things like spousal support and child custody.
An annulment states that a legal marriage never really existed. It metaphorically transports both parties back to the time before they were married. No one is entitled to anything, and it’s as if the marriage never happened.
Critical Differences Between Annulment and Divorce
Annulments are only granted in very rare circumstances. The outcome of an annulment is very different from the outcome of a divorce. Many factors determine whether or not an annulment is suitable.
- Status of marriage
- Legal grounds
- What happens after
Status of Marriage
If the status of a marriage cannot be called into question, divorce is the only option. An annulment can only be used in cases where at least one party asserts that the marriage was never technically valid.
Legal Grounds for Divorce vs. Annulment
The legal grounds differ for divorce and annulment. In both scenarios, you’ll need a reason why.
- Fault vs. No-Fault Divorce
- Legal Grounds for Annulment
- Burden of Proof
Fault vs. No-Fault Divorce: Most states use a no-fault divorce system. In a no-fault divorce, couples can file for divorce for any reason. Many couples use “irreconcilable differences”, a general term indicating that the team is no longer compatible.
Some states allow couples to file for a fault divorce, where one or both people are formally blamed for the marriage breakdown. InfidelImpotence or infertility unknown before the marriage
- Discovery that the marriage is incestuous (i.e., finding out you’re cousins or children born of the same sperm donor).
- One party is legally married to someone else, usually in a different state.
- Defrauding is when one spouse maliciously lies about who they are or what their intentions are before marriage.
- One spouse was a minor at the time of the marriage.
- One spouse was forced into the marriage under duress. This usually happens when family members threaten or pressure a couple to marry due to an unplanned pregnancy. It can also occur if someone is blackmailed into marriage.
- One spouse was too mentally incapacitated to consent to the marriage. This can refer to health conditions that affect cognition. It can also relate to alcohol or substance use.
- One spouse did not disclose that they are a convicted felon.
- One spouse had a child with someone else within the first ten months of the marriage.
Legal Grounds for Annulment: To get annulled, you need to prove that the basis for your marriage was never legal.
If your marriage doesn’t meet one of these criteria, it’s a legal marriage, and it cannot be annulled. You’ll need to pursue a divorce instead.
Burden of Proof: Couples don’t need to prove anything when they get a no-fault divorce. Both parties simply deciding that the marriage doesn’t work anymore is all the court needs. All you need to do is mutually consent to divorce.
For fault divorces, you’ll need to prove the fault you’re assigning to the other party. Incarceration is extremely easy to prove. You’ll need to gather evidence that supports claims of infidelity or cruelty. You can get a divorce ex-parte (without the other party) if the abandonment is ongoing and you cannot locate your spouse.
You’ll also need proof for an annulment. This can be difficult to obtain, especially in cases of coercion or defrauding. You may need DNA tests for you and your spouse, as well as DNA tests of any children you believe resulted from adultery during your marriage.
You can begin the divorce process anytime, but some states have mandatory waiting periods. In many states, you must wait a few weeks after filing for divorce before proceeding.
Other states have complicated laws. Depending on where you live, you may be required to be legally separated and live in different homes for a year or more before the divorce can begin.
Annulments are easiest to achieve within the first two years of marriage. Every state has a different period for annulments. Some states don’t have statutes for when annulment no longer becomes possible. This protects victims of abuse who may need more time to feel safe requesting an annulment.
What Happens After Divorce vs. Annulment
There are very significant differences between the aftermath of divorce vs. annulment. Divorce acknowledges that a marriage existed, establishing how things that resulted from that marriage will be handled moving forward.
Annulment rewrites history. With an annulment, you were never married. The aftermath is on par with breaking up with someone you were dating. The aftermath largely depends on how much you accomplished together in the short period you were married.
- Financial requirements
- Property division
- Impact on children
- Legal relationship status
Financial Requirements: After a divorce, one partner can request alimony or spousal support payments. You can’t do that after an annulment. After an annulment, the record shows that you never had a spouse. If you never had a spouse, you don’t have anyone to make support payments to.
Property Division: During a divorce, the property is divided according to a prenuptial or postnuptial agreement. If there isn’t one, the state will use its property laws to separate property. In customary law, property states that assets are weighed based on whose name is on the title or who made money. Every asset purchased and dollar earned after marriage belongs equally to both partners in a community property state.
There is no property division after an annulment, even if both parties own an asset together. Each party keeps 100% of their own privately held money. No one can come after anyone else for cash or argue they’re entitled to the other party’s privately held funds.
You'll need to settle the matter civilly if you both have your names on a bank account, house, or car. If you own a home, one of you can “buy out” the other partner’s share of the property. You can also agree to sell the shared property and split the proceeds. You may need a lawyer’s help to settle the matter after completing the annulment.
Impact on Children: Annulment and divorce will have the same impact on children. Any children you have within an annulled marriage will still exist.
Parents could enter into child support arrangements and custody agreements even if they were never married. One child’s parents may be responsible for paying child support, and you may need a child custody agreement.
Legal Relationship Status: Relationships have legal statuses. People who have never been married or divorced are considered single, even in long-term relationships. Legally separated people are considered separated. People who have had a spouse die are considered widowed.
Your legal relationship status is always “divorced” if you get divorced. It doesn’t go back to single. If you get an annulment, your relationship status reverts to “single.” You never have to disclose you were married because your marriage has been legally canceled.
Types of Annulments
There are two types of annulments. The court performs one, and the church conducts the other. These two types of annulment are radically different. They don’t hold the same weight in the eyes of the law.
- Civil Annulment
- Religious Annulment
Civil annulment refers to the legal process of having a marriage canceled. After a civil annulment, a marriage is rendered wholly invalid and stricken from the record. This type of annulment is binding.
Religious annulments only apply to people who actively participate in certain faiths. In the United States, most religious annulments come from the Catholic church. The requirements for a religious annulment will vary from faith to faith.
After a civil annulment, a couple can visit their church and ask for a religious annulment. In faiths that forbid divorce, couples can seek religious annulments to end their marriage and continue to live as separated symbolically.
This type of annulment has no bearing on the legal status or outcome of the marriage. Getting a religious annulment to end your marriage legally isn't necessary. It’s only spiritually necessary if your faith requires it.
Is Annulment Better Than Divorce?
Neither an annulment nor divorce is better. One or the other will be correct or appropriate depending on the circumstances.
An annulment won’t apply to the overwhelming majority of marriages. When annulment does apply, it’s only better than divorce if you get it very early on. Suppose you share property or assets with your partner. In that case, a divorce is the only method of ending your marriage that will allow you to divide them upon terminating your relationship correctly.
Annulment is possible in some scenarios, but it’s much more complicated to achieve than divorce. You may have difficulty getting an annulment, especially if you don’t have concrete proof that your marriage wasn’t valid.
If you have more questions about annulment, we can put you in contact with an independent local lawyer who specializes in the subject. If an annulment is possible, you’ll need a lawyer’s help to complete the process.