Sometimes, a couple that has been living as a married couple will find out that their marriage is not in fact valid. If a marriage is found to be invalid, or void, the court may grant an annulment instead of a divorce.
A marriage may be invalid if:
- Bigamy: One spouse is already married to someone else or where they are both wrong in believing that a previous marriage had ended due to divorce or death.
- Incest: A marriage may also be invalid where it was entered into by two people who are related to one another. Some states may recognize marriages between cousins.
- Underage: A marriage may be invalid if the parties are not of legal age to be married. The age to be legally married may vary between states, but the range is typically 16-18 years. Many states will exempt an underage marriage if the parents consent to the marriage.
- Sham: The parties did not intend to marry for the sake of marriage. Sham marriages are often formed in an effort to evade immigration law. If a marriage is judged to be a sham, it may not be recognized by federal courts.
- Fraud: States may void a marriage if one of the spouses can prove that his or her partner mislead him or her about the marriage. For instance, spouses who can prove that their partner concealed a sexually transmitted disease or lied about their ability to have children may void the marriage.
- Incapacity: Mentally ill people are allowed to marry. However, if a mentally ill person cannot, at the time the marriage was formed, understand what a marriage is or what a marriage means, the marriage will be voidable.
- Proxy: One or both of the spouses were not physically present at the time the marriage was performed.
- Duress: Used very rarely. The spouse must literally have a gun to the head when he or she says "I Do."
What’s the Difference Between a Void vs. Voidable Marriage?
A marriage that is void is one that is invalid from the time it occurred and will be treated as though it never existed. If a marriage is void, it may be annulled upon the death of an alleged spouse. Any third party, including a government entity, may challenge a marriage as being void. All states hold the following marriages to be void marriages: incest, polygamy, bigamy, and sham marriages. Some states hold the following marriages to be void marriages: underage and same-sex marriage.
A marriage that is voidable is one that can be annulled if it is challenged, but if neither party challenges it, then it will remain valid. Unlike void marriages, a marriage can only be voidable if one of the spouses challenges the legitimacy of the marriage. All states hold the following marriages to be voidable: marriage by fraud, marriage by proxy, marriage by duress, and marriage where at least one spouse is incapacitated. Some states hold the following marriages to be voidable: underage.
Is Spousal Support and Child Support Available If My Marriage Is Invalid?
In most cases, if your marriage is void and the court grants an annulment, you and your former spouse are free to go your separate ways, with no legal obligation toward one another. That means no alimony and/or child support will be granted.
Voidable marriages, on the other hand, are still subject to alimony and/or child support. If your marriage is annulled due to duress, fraud, proxy, or one of the partners couldn’t give consent to the union, then spousal or child support may still be granted. Although the marriage legally never existed, courts still recognize that one "spouse" might have mislead and/or wronged the other "spouse." In those cases, the spouse who deceived the other spouse will be liable for that deception.
Can I Make My Marriage Valid?
If you had a good-faith belief that your marriage was entirely valid, you are a putative spouse. You may still possess a number of the rights that you would have if your marriage was in fact valid. Though the laws vary from state to state, most jurisdictions will protect the putative spouse. In such cases, the court may require divorce proceedings in order to dissolve the marriage, and the normal rules governing property division will apply.
Should I Contact a Family Lawyer?
If you wish to get out of an invalid marriage, or if you have recently found out that your marriage is not valid and you believed that it was, you should contact a family lawyer. He or she will be able to assert and protect your rights.