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Divorce vs. Annulment: The Difference and Why It Matters

December 05, 2023
Divorce
Divorce vs. Annulment: The Difference and Why It Matters

Both divorce and annulment are ways to end a marriage.

What’s the difference between the two? Is one type favorable over the other when you and your spouse separate? The answer to that question will be easy for most couples–one is usually the obvious pathway. We’ll explain.

Divorce

In a divorce, you and your spouse agree that you were legitimately married. You built a life and shared assets.

When you divorce, you and your ex-spouse may agree on how to split the life you built. You sell the family home, or one spouse takes it. You split time with the children. You divide your assets and debts.

A mediator helps you and your spouse harmonize on divvying up assets and liabilities during disagreements. When all else fails, your state’s laws (and the courts enforcing those laws) decide for you.

Many states allow no-fault divorces. This means that neither spouse has to prove the cause of the divorce. Many couples typically cite “irreconcilable differences,” which results in a quicker and easier process in which no one has to gather evidence to prove fault. Quicker often translates to less expensive, too.

Your marital status on all documentation requesting it is “Divorced.” You don’t get to go back to “Single.”

Annulment

Unlike a divorce, an annulment is rare and results in a marriage that never existed. It’s practically erased from history because it wasn’t valid.

Couples who ask for an annulment argue that the marriage wasn’t legal. It only takes one partner to submit the claim for consideration. The claimant must then prove how the marriage was invalid.

What kinds of scenarios would constitute a legally invalid marriage? Things like:

  • Duress or coercion (Ex. Family forced marriage because of an unplanned pregnancy.)
  • Fraud (Ex. A partner was using a fake identity.)
  • Misrepresentation (Ex. Partner didn’t reveal a criminal record, prior divorce, or infectious disease.)
  • Infertility or impotence (Ex. One partner knew they couldn’t have children and lied about it.)
  • Bigamy (Ex. One partner was legally married to someone else at the time of the marriage.)
  • Underage (Ex. One or both persons were younger than the legal age to marry at the time.)
  • Sexual dysfunction (Ex. The couple did not consummate the marriage due to physical inability.)
  • Mental incapacity (Ex. One or both partners were not of sound mind due to the influence of alcohol, drugs, or a mental disorder.)
  • Incest (Ex. Spouses are too closely related and can’t legally marry one another.)

A person must provide proof to ask for an annulment. Proving some of the above scenarios can be difficult. For example, how easily can someone prove they were too drunk to consent? Or that the person they married was? Can you prove his sexual dysfunction when he never saw a doctor about it and denies the problem exists?

Unlike a divorce, where laws govern what to do with shared property, the legal system has little to say about how a separated, non-married couple treats combined bank accounts, real estate, auto loans, joint custody, and child support. If granted an annulment, you and your ex must decide how to split combined assets or debts.

Your marital status on all documentation after an annulment returns to “Single.” It’s as if you were only dating and broke up.

Types of Annulments

There are two types of annulments–civil and religious. The court performs one. Certain religions dictate the other.

A civil annulment is performed by the court. It is legally binding and strikes your marriage from the record books. Legally, your vows were invalid and like they never happened.

Certain faiths (mostly Catholic, in the U.S.) perform a religious annulment. These types of annulments aren’t recognized by the legal system.

Timing

Your circumstances largely determine whether a divorce or annulment is the right course of action. Divorce can occur anytime. Some states have mandatory waiting periods before you can file for divorce. For example, in some states, you must wait 72 hours after marriage to file. If one party must find fault in the other, then the process is longer.

Most annulments occur within the first year or two of marriage. However, most states have no time limit on when you can get an annulment.

When Either Fits Your Scenario

Annulments don’t apply to the majority of separations. If your case could lean either way–divorce or annulment–there are no hard and fast rule as to which you should choose. It all depends on the details.

In a divorce, the law will help you and your ex separate shared property and devise a shared parenting plan. Divorce is a better avenue if you need legal backup splitting property.

An annulment can help a person avoid some obligations a court might order in a divorce. For example, spousal support from one marriage that ended because of a recipient’s second marriage can be reinstated if the second marriage is annulled in some states.

In a Nutshell

Divorce is most common because the grounds for an annulment are very particular. Though annulments can be quicker than some types of divorce (i.e., an at-fault divorce), it can be more challenging to prove fault with the other partner or the circumstances of the marriage.

An annulment results in a clean break from the partner. Essentially, the marriage never existed in a court of law. Unlike divorce, the law says less about how assets and debts are split in an annulled relationship.

Ex-partners can turn to mediators and legal counsel for help. An app for divorced parents or an expense tracker app can be good tools for annulled or divorced couples to pay each other without speaking to one another.

As always, consult legal counsel if you have additional questions or need help navigating the legalities of your and your spouse’s case.

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