Created by FindLaw's team of legal writers and editors | Last updated October 26, 2018
Divorces and annulments both have the same effect--they dissolve the marriage. However, they differ in how they treat the marriage. When people get a divorce, they're still recognized as having been married previously. An annulment, on the other hand, treats the marriage as though it never existed -- and in fact, the key distinction of an annulment is that the union wasn't legal or legitimate to begin with.
This article explores the primary legal differences between annulment and divorce, including information about extrajudicial religious annulment.
The Difference Between Annulment and Divorce: An Illustration
To help understand the difference between annulment and divorce, let's look at two hypothetical situations. Let’s say, for example, Couple A discovered they no longer saw eye to eye after five years of marriage and decided they needed to call it quits. Depending on the marital property laws of their state, their combined assets and liabilities will be divided either equally or equitably; one spouse may pay alimony to the other; and child custody, support, and visitation will be determined. If the couple can’t agree on the terms of the divorce, it may be argued in court and decided by a judge. The union was valid when they obtained their marriage license, but now they wish to terminate the marriage.
Meanwhile, Couple B settled down together and had what you would call a happy marriage. However, the wife discovered after a couple of years -- from a demand letter seeking support payments -- that her husband actually left his first family one year before she met him. She had no idea he was previously married, or that he had children. Since he misrepresented and/or concealed important information, she filed a petition for annulment in the court with evidence of his concealment or lie. The court agreed, declared the marriage null and void, and the two parties went their separate ways as if they were never married in the first place.
If Couple B had children together, then the courts would still go through the child custody, visitation, and support process. The court would probably be more sympathetic to the mother in this scenario, given the father’s misrepresentation, as long as the focus is on the best interests of the child(ren).
Civil Annulments
Annulments are a form of relief for people who were placed in situations in which they never should have been married. Because civil annulments treat the marriage as though it never existed, a person must have a pretty good reason to obtain one. Typically, one of the following requirements (or legal grounds) must be met to obtain an annulment vs. a divorce:
Fraud or Misrepresentation - One of the spouses has lied about something, such as age or already being married.
Concealment - One of the spouses hid a major fact, such as a felony conviction.
Misunderstanding - For instance, one of the spouses does not want to have children.
Impotency or Incest - One of the spouses is incurably impotent (and the other spouse didn’t know), or the spouses are too close in familial relation to marry.
Lack of Consent - One party lacked mental capacity to consent or was forced into marriage.
These things are usually discovered early on in the marriage, so there typically is no need to divide property or decide on issues regarding children. However, most state laws do govern how to decide such issues should an annulment of a long-term marriage occur. Check with your state's laws regarding property division and child custody, visitation, and support. If you do have children from an annulled marriage, these children are not considered illegitimate.
Religious Annulments
The grounds for obtaining a religious annulment are different than those for a court-granted annulment. However, both types of annulments have essentially the same effect--the marriage is treated as though it never existed.
In the Catholic Church, a diocesan tribunal, rather than a court of law, decides whether the marriage bond was less than a covenant for life, because it was lacking in some way from the very beginning. Either or both parties may obtain an annulment if they can show adequate grounds, such as a lack of maturity, honesty, or emotional stability. If the tribunal grants the annulment, then both parties may remarry in the Catholic Church. Like in the court of law, the legitimacy of the children of an annulled marriage is not questioned.
More Questions About Annulment vs. Divorce Cases? Speak with an Attorney Today
There are many misconceptions about legal annulments, including when they are available and under what circumstances. Each state has different requirements and not all persons seeking to annul their union will be entitled to do so. Find out more by contacting a family law attorney experienced in annulment and divorce cases and get some answers and options to help you move forward.
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