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Divorce vs Annulment: Understanding the Key Differences

By: Jarbath Pena Law Group


When people get married, the last thing on their minds is that their marriage might end someday.

But as we all know . . . some marriages don’t make it. 


But is there only one legal process to end your marriage? Well, the likely answer is yes. Divorce is likely the only legal process available to end your marriage. However, in relatively rare instances, annulment might be an option.


But what is an annulment? And how does it differ from divorce? Is it preferable? Today, the Jarbath Peña Law Group lawyers will discuss these two legal processes so you can decide which would better serve your needs.


What Is a Divorce?

As you likely know, a divorce is a legal process through which you can end your marriage. But in trying to understand the difference between a divorce and an annulment, it’s important to know that you cannot get a divorce if you did not have a valid marriage to begin with. Therefore, if you suspect your marriage was invalid from the start, you should speak to a lawyer before filing for divorce.


Additionally, if you obtained a divorced in a country that both you and your (former) spouse no longer resided, you may not have a valid divorce. It is a common misconception that you have to get divorced in the same country that you were married in. This is not true. However, as a result, that likely means that your subsequent re-marriage to someone different, may not be valid as well. This may mean that you are in a bigamous marriage. While the divorce may be legal in the other country, the United States will not accept that divorce as valid if it was done by proxy and none of the parties to the divorce resided there at the time of the divorce as well. Most individuals will find this out when they go through the immigration process. If this is the case, you should consult with an attorney as soon as possible.


Ending a Valid Marriage


But for everyone whose marriage is valid, ending it requires filing a petition for dissolution of marriage (i.e., divorce). In Florida, you can get a divorce for almost any reason, as we are a “no-fault” divorce state. This means that one spouse can get a divorce for any reason or no reason at all. To get a divorce, there is no need to provide a reason or prove that your partner engaged in any wrongdoing. You can simply state that you are experiencing irreconcilable differences and need to be separated. Once you or your spouse files the petition with the court, you must address child support, child custody, alimony and the division of marital property.


You and your spouse are encouraged to attempt to work out these issues by agreement. If you can agree, the judge will just sign off on the agreement and make the terms of your agreement official—so long as the terms are reasonable and do not violate the law or public policy.


If you cannot agree, then you present your case to the judge, and they will decide these issues for you. Either way, the judge officially dissolves your marriage when they issue the dissolution order.


What Is An Annulment?

An annulment is different. Although both processes result in two partners no longer being married, there are crucial differences. Perhaps the biggest difference is that you can only use an annulment if you claim that your marriage was invalid from the start. In other words, you were never validly married—so you don’t need a divorce. You simply need someone to legally declare that your marriage never really existed.


So, an annulment is a legal ruling that a marriage is null and void--meaning that it essentially never existed in the first place. And since there was no marriage, the court usually does not have to consider the division of marital assets, alimony, or worry about the implications of any premarital agreement.


Why?


Because if the marriage was void from its inception, then a contract based on the marriage is also void and neither party has any legal right to the other's property. However, this typically applies if the void “marriage” was of short duration. It is rare, but if a couple that qualifies for an annulment was together for a long period of time, a judge may still have to deal with commingled property or children. In other instances, where the marriage was not valid, the Court may, in some very limited circumstances award spousal support. Again, this is rare and very limited.


Grounds for Annulment

You must qualify for an annulment, and there are very limited reasons for asking a court to declare your marriage invalid. These reasons include the following:


  • Bigamy: If one of the parties is already married, this invalidates the second marriage. This is more common as some countries allow parties to get divorced by proxy and neither party are required to reside in that country to obtain the divorce. Since that divorce is not valid in the U.S., any subsequent marriage is void, and subject to annulment, even if it was unintentional.

  • False Pretenses: If one party lied to the other and tricked them into getting married, that could invalidate the marriage. Proving fraud is a very high burden, and it is case specific. Therefore it is very rare for the Court to award an annulment on this basis.


  • Mental Incapacity: If one or both parties were legally incapable of consenting, the marriage could be voided. For instance, if one party has a mental disability or is underage, they lack the legal ability to consent in most instances.

  • Concealment of Material Facts: If a party to a marriage lies about essential facts, like having other children or having a criminal record, a court could invalidate the marriage.

  • Incest: If the parties are related, the marriage is not valid.

  • Not Able to Consummate: If one or both parties are not able to consummate the marriage, this could also be grounds for annulment.


In Florida, you must provide evidence of your reasons for requesting an annulment. 


How Are Children Handled in an Annulment?


If you have children with your spouse and get your marriage annulled, it is as if you were never married to begin with. When parents of a child are not married, they can attempt to work out the details of child custody themselves, or they can go to court to have the Judge make a determination regarding custody. Alternatively, the parties can seek to have their own internal agreement. However, trying to operate on a simple verbal agreement can have its drawbacks. For example, if one parent refuses to comply with the unofficial agreement, the other parent is left with little ability to enforce the terms. 


Ultimately, whether you were never married or got an annulment, it is best to petition the court to issue an order on child time sharing. That way, if either party does not comply, the court can enforce the order.

We Can Help!


The attorneys at The Jarbath Peña Law Group can help you decide which path to take, and once you decide, they can pave the way for a smooth separation. We can look at your situation and determine if annulment is an option. And even if it is an option, we can help you decide if it is the best option! Sometimes, annulments can be more difficult and costly than a divorce. So, you’ll want to consider every potential drawback before deciding on a course of action. Call 305-615-1005 or contact us through our online contact form today!  

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