An annulment, similar to a divorce, dissolves a marriage. There are, however, differences between the two.
An annulment treats a marriage as though it never occurred in the first place. Traditionally, divorce carried a type of stigma and also made remarriage in a church difficult or impossible in certain religions. An annulment provided individuals with a solution to avoid the stigma of a divorce and made remarrying in a church easier.
In order for an individual to obtain a civil annulment which is granted by the state, at least one of the following criteria must be met:
- Fraud or misrepresentation, where one spouse lied about or concealed a serious issue, such as the inability to have children, felony convictions, or a sexually transmitted disease;
- Bigamy, which occurs when one spouse is legally married to another person at the time of the new, alleged marriage;
- Incest. State laws deem a marriage illegal if the spouses are too closely related; or
- Lack of consent. In order to legally marry, both spouses must be of sound mind and they must both voluntarily consent to the marriage. In addition, each spouse must be of legal age to marry.
Some religions may grant individuals a religious annulment after they have gone through a divorce. This allows the individuals to remarry ceremonially as these are based on grounds which are different than those that are required for a civil annulment.
What is Divorce?
A divorce is the dissolution of a marriage which the court recognized as a legal union. Nowadays, divorces are much more commonplace and do not carry the stigma that they once did.
Divorces are separated into two categories, fault and no fault divorces. In a fault divorce, one spouse has committed a wrong and, because of this a divorce should be granted. It is important to note that this type of divorce is not used in many states and those that do use it may have variations of the fault justifications that can be used.
In states that do use the fault divorce system, divorces may be granted in situations where there is or has been:
- Domestic violence involving emotional and/or physical abuse;
- Adultery; and
- Abandonment and desertion.
The party filing for a fault divorce must be able to show that their spouse acted in such a way that justified the end of the marriage union. In a no fault divorce, however, no reason must be provided to justify the divorce or to prove fault on the part of a spouse.
The most common reason cited in a no fault divorce is irreconcilable differences. Some states do require the spouses to state in their pleadings that they can no longer get along.
The spouse who is filing for divorce is not required to have permission or consent to file. Each state in the United States recognizes no fault divorces. However, some states may require the individuals to reside separately for a specific period of time prior to being able to obtain the divorce.
How is Property Treated?
In most cases, annulments take place shortly after a marriage. In these cases, the court will trace the assets back to the spouse who was the original owner of the property. If an annulment takes place after a substantial period of time has passed, then the court will do its best to fairly divide the assets.
In a divorce, the dividing of assets is a standard procedure. The way in which the property is divided will depend on the state in which the individuals reside. Property may be divided according to community property laws or equitable distribution laws.
In community property states, any property that a married couple accumulates or obtains during the marriage is considered community property. If the spouses separate or divorce, they both own an undivided share of that property. Community property states have a presumption that any property acquired during a marriage is a community property item.
Therefore, any spouse that is claiming a particular piece of property is not community property has the burden of proving this claim. However, any property which belonged to one spouse prior to the marriage, was given to a spouse as a gift from a third party during the marriage, or was obtained after a divorce or separation, is considered by a court to be separate property.
In some cases, however, a court may determine that separate property is altered enough to become community property. For example, if one spouse is given a house prior to the marriage but adds their spouse’s name to the deed, it may be considered community property.
States that follow community property laws include:
- New Mexico;
- Washington; and
Property may be divided differently in equitable distribution states. This form of property distribution is more popular than community property.
In these states, the court will examine a number of factors and try to divide the property as equitably as possible. It is important to note, however, that equitable distribution does not mean divided equally.
Equitable distribution refers to a division of the property which achieves a fair and comprehensive result for both of the parties. In other words, the focus is on fairness to both parties instead of a 50/50 division of property.
Factors that a court may examine in order to fairly divide property in these states includes:
- How long the marriage lasted;
- Whether a prenuptial agreement existed that sets out specific terms for a separation or divorce;
- The employment, skills, and financial background of each party;
- If there will be any issues related to child custody and child support;
- The age and health of each spouse, including any medical conditions;
- Whether one of the parties will require spousal support or alimony;
- What each individual’s estate offers compared to the marital estate;
- Whether there are any jointly or independently owned businesses by both or one of the parties; and
- Various other factors.
These factors are examined in order to provide a comprehensive and fair division of property between the spouses. The only downside to the use of equitable distribution is that it may involve a deeper analysis which may cause the proceedings to take longer.
Issues of marital misconduct, such as having an affair, do not factor into the determination of property rights in community property states or equitable distribution states.
Is Child Custody Treated Differently?
Child custody issues are treated in the same manner in annulments and divorces. Whether an individual seeks an annulment or a divorce, they will follow the same process for issues including:
Should I Get an Attorney for My Divorce or Annulment?
It is essential to have the assistance of a divorce lawyer for your annulment or divorce issues. Both annulment and divorce proceedings can be complicated and emotionally taxing as well as expensive.
Your lawyer can advise you whether or not you are eligible for an annulment. If you are required to file for a divorce, your lawyer will ensure your property is divided in an equitable fashion, your rights are protected, and you are represented each time you must appear in court.