Annulment vs. Divorce: What is the Difference?

Annulment vs. Divorce Photo Source: Adobe Stock Image

Whether you're Britney Spears looking to end your marriage after 55 hours, had a night in Vegas involving Elvis and a chapel, or are your average joe ready to call it quits after several years, divorce and annulment are two words that might pop up in the conversation. But what exactly do they mean and how do they differ from one another?

In the U.S. divorce and annulment are the only two legal ways to end a marriage. But how do you know whether you should seek an annulment or divorce? The two terms both result in the end of a union, but the way they unfold are very different. Plus, each offers its own drawbacks and advantages. “Divorce is commonly the only option and might be a better option,” says Houston family law attorney Maria Lowry. “If there is property acquired during the marriage, divorce might be a better choice.” Lowry suggests that in some instances, it is advisable to plead for both the annulment and divorce in the alternative so that if the annulment is denied, the divorce is already in process. “Not all courts will allow this,” Lowry says, “but your lawyer should be familiar with your court’s preferences.”

Let’s take a look at whether you should seek an annulment instead of a divorce, and how each process can serve your unique situation.

If there is no marriage, there is no community estate, no community property. A divorce with a property division might provide more clarity going forward about each person
— Maria Lowry, California Family Law Attorney

Main Difference Between Divorce and Annulment

The main difference between a divorce and an annulment is that divorce legally ends a valid marriage and an annulment ends a marriage by recognizing it was not a valid marriage to begin with.

What is a Divorce?

If you think about marriage in terms of a legal contract, the contract is alive and valid until a court recognizes that it is no longer so.

When two parties enter into a divorce, they acknowledge that the marriage was legal but either one party or both have decided to move forward in ending the marriage.

If both parties agree that the marriage is ending because the two parties have grown apart and it’s time to move on, then this is typically referred to as a “no-fault divorce.” The reason for separation is typically listed as “ irreconcilable differences” or an “irretrievable breakdown” of the marriage, depending on state law.

Parties in some states might also decide to move forward with an “at-fault divorce” where that option is available. This type of divorce recognizes that one party blames the other for the dissolution of the marriage. This can be because a variety of reasons, but they will typically include:

  • Adultery or cheating
  • Desertion or abandonment
  • Physical or mental abuse
  • Habitual intoxication

When a divorce takes place, it can often be messy, long, painful, and expensive. Both parties can have a claim to the ownership of assets obtained throughout the marriage, and moving forward with the divorce means that property gets split between both parties. If there are children involved, then issues like child support and custody are brought forward for discussion as well. Each state has its own rules regarding how assets are split and support is paid.

What is an Annulment?

When it comes to an annulment, the courts will approach the dissolution of the marriage by acknowledging that the marriage was never valid, to begin with.

To move forward with an annulment, you first have to meet certain conditions that make you eligible for an annulment. Different states have different guidelines on what makes a marriage eligible for an annulment. Generally speaking, you can typically proceed forward with an annulment if your marriage meets any of these criteria:

  • Bigamy - Either party was already married to somebody else before they entered their new marriage.
  • Fraud - One party was misleading or lied about circumstances before entering the marriage. Different states have different definitions for fraud.
  • Incest - The marriage is between two related family members who are closer than first cousins
  • Forced Consent - One party was forced into the marriage by the other by force or threats.
  • Mental Illness - One party was mentally ill at the time of the marriage or incapable of consent due to intoxication or other mental incapacity.
  • Consummation and Impotence - One partner was physically incapable of consummating the marriage or one partner is impotent and didn't disclose that information at the time of the marriage.
  • Underage Marriage - One party was not of legal age to get married.

Depending on the state you live in, the reasons for moving forward with an annulment may differ. Additionally, there might be some specific and defined deadlines for filing an annulment. For example, in New Jersey, you can file for an annulment of your marriage at any point in time. Typically, however, annulments are usually used in short-term marriages. Also, you don't have to wait a certain period of time after getting married in order to file for the annulment.

In California on the other hand, there are strict statutes of limitations for annulment. For example, if a party is filing for an annulment on the grounds of fraud or force, then the annulment must be filed within four years of that fraud being discovered or the forced marriage taking place.

While states all offer similar reasons for moving forward with an annulment, they all differ in the details and deadlines of when you can file. If you miss these deadlines, you will generally need to move forward in a divorce.

After a Divorce or an Annulment

Once an annulment has been granted, the marriage is wiped clean legally and it is as though it never existed. Both parties will both receive a marital status of “single” or “unmarried.” Once a divorce is finalized, marital status changes to “divorced.”

If you end your marriage in a divorce, you might still be responsible for financially supporting your spouse. However, an annulment does not hold a partner responsible for alimony or spousal support. There are certain rights that you may have after a divorce that you would not have if you move forward with an annulment.

Unlike a divorce, there are fewer issues to deal with if you move forward with an annulment. Property is not divided, and the process of dissolving the marriage typically does not take as long as a divorce. This could be a plus or minus depending on the assets the couple acquired together. As attorney Lowry points out, “If there is property acquired during the marriage, divorce provides a framework for dividing it in a fair and equitable way.” In an annulment, on the other hand, there is no such framework, so general civil law is used to partition property, enforce contracts, or otherwise sort out the financial affairs as if they were just two people who owned things in common, according to Lowry. “If there is no marriage, there is no community estate, no community property. A divorce with a property division might provide more clarity going forward about each person's ownership interests and responsibilities.”

If you had children with your partner and proceed with an annulment, you might still have to deal with issues like child support and custody. “Children born to a marriage that is subsequently annulled are legitimate,” says attorney Lowry. Lowry explains that in Texas, a child custody case (known in Texas as a Suit Affecting the Parent-Child Relationship or SAPCR), “can be brought between unmarried parents or between married parents with or without a divorce.”

Lowry also cautions that an annulment can wreak havoc on one’s immigration and citizenship status, if either spouse is adjusting their status based on the marriage. While marriage can end in divorce without affecting the immigration process as long as it can be established that the marriage was bona fide at its inception, an annulment means there is no marriage upon which to base the immigration petition.

In general, Lowry concludes that an annulment is only available in limited circumstances and might not be the best tool even when it is available. “Divorce might be a better option or the only path available.”

Nadia El-Yaouti
Nadia El-Yaouti
Nadia El-Yaouti is a postgraduate at James Madison University where she studied English and Education. She lives in Central Virginia with her husband and two little girls. Although she considers herself a workaholic, when she’s not juggling work, you can be sure to find her traveling the world with her little family.