The Difference Between Divorce and Annulment

Many people see divorce and annulment merely as two different words for dissolving a marriage. However, while both of them do in fact dissolve a marriage, a divorce actually “ends” or terminates a legal marriage, whereas an annulment “invalidates” the marriage.

While divorce depends on the existence of an actual legal marriage, it does not “undo” the marriage but rather “ends” it. Annulment, however, “can undo” the marriage by declaring it invalid. Even if the actual wedding ceremony took place but under the law there was never an actual legal marriage, an annulment can be obtained if the said marriage was either void or voidable.

A void marriage is one that was never legal (a marriage void ab initio or marriage void from the beginning), such as in the case of a second concurrent marriage (bigamy) or marriage between two closely related people (incest).  A voidable marriage is one that could be declared void because of specific facts. For example, if a man marries a woman who later “comes out” and declares herself to be a homosexual, the husband could seek an annulment if the wife’s orientation was concealed before the wedding. This means that had all the facts been presented before the marriage, presumably it either shouldn’t or wouldn’t have taken place, and as such the marriage is invalid.  However, if the man knows about wife’s sexual orientation, enters into the marriage, and continues to live with her, he cannot later claim premarital fraud and assert that the marriage is invalid or “voidable.” That is not to say, the man must remain married. Instead of an annulment, he may file for a divorce.

It should be noted that while such issues as child custody and child support may be addressed in an annulment, alimony or spousal support may not be an option.  Once the marriage is declared invalid, the parties no longer have any financial marital obligations to each other. Some property division issues can also be addressed, however, if the couple was married long enough to acquire significant marital property, most courts would encourage a divorce rather than annulment.

If you have been married a short time and don’t have assets or children and your main goal is to save money on legal fees, then a divorce may be a cheaper and faster option for you.

It is not enough to simply file and ask to have one’s marriage annulled. In order to annul a marriage the person seeking such legal action must prove that the sufficient statutory grounds have been met. However, unlike grounds for divorce which mainly pertain to facts that make the marriage no longer viable, grounds for annulment focus on reasons that prove that the marriage was never truly viable.

Some typical grounds for an annulment usually involve one party’s lack of capacity for marriage or some type of fraud.  As such, grounds for annulment include being forced or threatened into marriage, mental incapacitation at the time of marriage, temporary or permanent insanity, underage marriage (in NJ being under 18 years old) – marrying without the court’s approval or consent of the custodial parents or legal guardians, intoxication (drugs or alcohol) at the time of the marriage, marriage based on fraudulent statements or actions by the other party (for example: failure to disclose a drug addiction or sexual history significant enough to raise to the level of premarital fraud), bigamy, impotence, sterility, or incest.  It should be noted that annulments are not easily granted, and proving that a marriage is voidable is not easy.

Simple fraud and/or lying to one’s spouse have been held to be insufficient grounds for annulment. New Jersey courts have shown some reluctance when deciding whether to grant annulments where one party conceals some fact, or misrepresents his or her personal or sexual history, except where it has been shown that the misrepresentation affected the essentials of the marital relationship. Similarly, attempts at invalidating so-called “immigration marriages”, entered into for the purpose of securing permanent residence status (green card), have been rejected where the essential components of the marital relationship, such as cohabitation, were still found to exist.

If you are seeking to annul your marriage because your faith opposes divorces, you should consult your religious adviser. Even if you obtain a legal annulment, your marriage may still be valid in the eyes of the church, and you may need to seek a religious annulment.

The law of annulment in New Jersey is not subject to the statute of limitations, but it is subject to equitable defenses such as laches, estoppel* and ratification. Laches, basically means that if one party delays bringing a lawsuit, as a result of this delay, that party may no longer be entitled to that claim. Put another way, failure to assert one’s rights in a timely manner can result in a bar to the asserted claim. A spouse can’t also file for an annulment if he or she is complaining of some fact that has existed in the marriage for many years, and he or she chose not to act. For example, the husband’s concealment of a heroin addiction constituted fraud warranting annulment, however, once the wife discovered husband’s addiction and continued to cohabitate with him as wife and husband, she has ratified the marriage and thus defeated the cause of action for annulment since non-ratification upon disclosure is prerequisite to the cause of action.

*Also known as doctrine of unclean hands. This defense provides that a court can’t grant a person an annulment if he or she has in fact acted unfairly and deceptively in the marriage.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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