Divorce isn’t the only way to end a marriage. In some cases, annulment may be an option. 

Although divorce and annulment have similarities, each has specific requirements that you want to understand before deciding which to pursue.

In this article, we’ll take a closer look at how annulment differs from a divorce, when you may be able to obtain one and how to get an annulment.

Annulment definition

An annulment is defined as “a legal procedure that voids a marriage and declares it null from its inception.” In short, an annulment makes the marriage as if it never happened. 

Annulment vs divorce: An overview

Both an annulment and a divorce provide an avenue to terminate a marriage. However, there are a few key differences to note.

Ultimate effect

The primary difference between an annulment and a divorce is the ultimate outcome. 

A divorce is a process that ends a valid marriage. Conversely, an annulment effectively erases the marriage from record and retroactively invalidates the marriage entirely—it’s as if it never occurred. For this reason, annulment is a relatively rare option available only in very limited circumstances. 

Timing

Another key difference between an annulment and divorce is their timing requirements, depending on the jurisdiction where your case will be heard. Some jurisdictions don’t have separate timing requirements for annulment. 

A divorce is available to a couple at any point in their marriage, after satisfying any applicable waiting period requirements in the jurisdiction where your case will be heard.

On the other hand, in some jurisdictions, an annulment is typically only allowed within a certain time frame after the marriage date. This time period varies from state to state, but in most cases, you must file for annulment within a few months to a year. This makes annulment much more time-sensitive than divorce, so depending on when your date of marriage was, divorce may be your only option. 

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Property division and spousal support

An overarching goal in a divorce is to provide a fair and equitable division of property between the parties. The court typically takes a number of factors into account—such as the length of the marriage and each party’s financial situation and contributions to the marriage—when determining this division. A court might also take these and other factors into account when deciding whether to order spousal support (sometimes referred to as alimony).

Conversely, since an annulment treats the marriage as if it never occurred, property division and spousal support may not be available.

Grounds for annulment: When can I get an annulment instead of a divorce?

Certain conditions must exist before someone may qualify for an annulment. The precise rules and requirements vary depending on which state you live in. That said, below are some of the most common reasons for annulment.

1. Fraud or misrepresentation

If one person entered into a marriage based on the fraud or misrepresentation of the other spouse (for example, they lied substantially about their financial status), the deceived spouse may be able to seek an annulment. 

However, the misrepresentation or concealed fact generally must be something that would have caused you to not marry your spouse in the first place. So if you continue living with your spouse without conflict after discovering the concealed fact, you may be unable to obtain an annulment. 

2. Age

Another ground for an annulment is where one spouse wasn’t of a legal age to marry at the time the marriage took place. In these situations, the marriage can be voided entirely. Keep in mind, the age of consent to marry varies by state.

3. Mental incapacity

To enter into a marriage, both parties must be able to give their consent to the marriage. Thus, mental incapacity can be grounds for annulment. 

For purposes of annulment, mental incapacity means that one party lacked the capacity to consent to and understand the nature of the marriage they entered into. This could be due to an illness, mental condition or the influence of drugs or alcohol.

4. Existing prior marriage

Bigamy, or the act of going through a marriage while already married to someone else, is another scenario in which an annulment may be appropriate. 

5. Impotence

In some states, impotence may be a basis for annulment. Generally, the condition must be permanent and incurable. Also, it must have been present at the time of the marriage ceremony, and the other spouse must have been unaware of it.

How to prove the grounds for annulment

To successfully have your marriage annulled, you need evidence to support your claim. Below are examples of evidence that may be used to prove some of the more common grounds for annulment. 

1. Fraud or misrepresentation

• Emails, text messages, financial records, and other communications or documentation showing that your spouse lied to you or misrepresented certain facts
• Oral testimony from individuals who were aware of your spouse’s fraud or misrepresentation

2. Age

• Birth certificate
• Driver’s license
• Other documentation confirming the individual’s true age

3. Mental incapacity

• Medical records
• Expert testimony from a medical professional
• Blood or breath test results if one of the parties was under the influence of drugs or alcohol

4. Existing prior marriage

• Marriage certificate
• Social media activity
• Witness testimony from the prior spouse or other individuals who were aware of the first marriage
• In some cases, a divorce decree, if the decree confirms that the divorce for the first marriage wasn’t finalized until after the second marriage took place

5. Impotence

• Medical reports confirming the condition
• Expert testimony from a medical professional 
• Testimony from the other spouse regarding a lack of sexual intimacy during the marriage

The annulment process

The particular steps in the annulment process vary from state to state. That said, the general steps are as follows.

1. Decide whether to hire an attorney

Annulments can be just as complicated as divorces. You may want to consider hiring an attorney to help you complete all the necessary steps, negotiate with the other party and represent you at trial, if necessary.

2. File a petition

The first step to initiate the annulment process is to file the necessary paperwork. This is typically referred to as a petition or complaint for annulment. The petition usually must state the specific grounds for annulment. Once you’ve drafted the petition, you must file it with the appropriate court and pay the filing fee. 

3. Serve the other party 

You must have the petition or complaint personally served on the other party. This ensures that the other person knows you filed for an annulment.

In most cases, the petition for annulment can be served by a county sheriff or a private process server. Both typically charge a fee for this.

4. Discovery

After being served, you and your spouse usually have an opportunity for discovery. During this legal process, you each request and exchange information and evidence pertaining to the annulment case, such as financial or medical records.

5. Uncontested annulment

If both spouses agree to annul the marriage, you may be able to move forward with an uncontested annulment.

If the parties can’t agree to the annulment, the case proceeds to trial. 

6. Trial

At trial, each side presents their evidence and argues their respective cases in court. A judge considers all evidence presented and makes a decision. If the court grants the annulment, it issues a final order declaring the marriage void. 

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How much does an annulment cost?

The cost of an annulment varies widely depending on a number of factors, such as: 

• The state in which you file
• Filing fees in your jurisdiction
• Whether you hire an attorney
• The need for expert testimony and the cost of any experts you hire
• Whether the parties participate in mediation
• Whether the other party contests the annulment

For example, the current cost to file an annulment proceeding in Colorado is $230, while the cost in California currently ranges from $435 to $450. 

And if you hire an attorney, an annulment can become much more costly. Most attorneys charge an hourly rate for their time: Many family law attorneys currently charge, on average, between $225 and $310 per hour. Still, some people find it difficult to navigate the annulment process without legal help and find the cost to be worth it.

Should I get an annulment or divorce to terminate my marriage?

There’s no clear-cut answer on whether an annulment or divorce is best for any one person. You need to consider:

• How long ago you got married
• Whether you wish to seek spousal support or any shared property
• Whether you share any children with your spouse
• Your grounds for ending the marriage

Even if your situation qualifies you to file for an annulment, there may be reasons that a divorce makes more sense. 

When to speak with a lawyer

Seeking an annulment or divorce is a serious decision that requires careful consideration. To help you determine which option best suits your situation and needs, you may wish to speak with a qualified attorney. Once they know the facts surrounding your case, they can discuss the pros and cons of annulment and divorce and how to move forward with your choice.