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Annulment vs. Divorce - What's the difference?

Wondering what the difference is between annulment and divorce? We cover everything you need to know about annulment vs. divorce here.

evident Editorial Team
published
July 18, 2022

There are two options for legally ending a marriage – divorce and annulment. (Legal separation is a different process that does not actually end a marriage). 

This article will explain what an annulment is, how it differs from divorce, and the pros and cons of annulments so you can better understand which option might be best for you.

Key Takeaways

What is an annulment?

An annulment is an order that dissolves a marriage and treats the marriage as though it never occurred. Rather than declaring a legally valid marriage over, annulments declare that a marriage was never valid in the first place. 

Among annulments, there are two main types – civil and religious.

What is a civil annulment?

A civil annulment terminates a marriage and means that the marriage never occurred in the eyes of the law. Either spouse may file a petition for this kind of annulment, but civil annulments must be granted by a judge. 

Each state has different grounds for civil annulments, but the following grounds are typically the most common: 

  1. Underage marriage 

If one or both spouses were under their state’s legal age of consent at the time of the marriage, then either spouse can seek an annulment. They must seek an annulment before the underage spouse turns 18, however, otherwise both spouses waive their annulment claim if they continue living together.

  1. Bigamy 

Bigamy is when someone is married to two people at the same time, which is illegal in all 50 states. If a spouse was married to someone else when the second marriage occurred, the couple would qualify for an annulment on bigamy grounds.

  1. Mental incapacity

If either spouse was too impaired by alcohol or drugs at the time of marriage to provide consent, the couple can seek an annulment. Similarly, a spouse who does not have the mental capacity to understand the marriage ceremony or provide consent cannot be legally married.

  1. Fraud or misrepresentation

A spouse who hides or misrepresents a material fact of the marriage, such as having children or significant financial commitments, has committed fraud and gives the other spouse grounds to seek an annulment. A spouse waives their right to claim marriage fraud, however, if they do not immediately separate from the guilty spouse upon finding out about the fraud.

  1. Incest 

If a married couple finds out that they are closely related by blood, they have the option to seek an annulment. 

What is a religious annulment?

A religious annulment is one that is issued by a church or a religious tribunal instead of a court and does not legally terminate a marriage. The issuance of a religious annulment does not ensure that a judge will grant a civil annulment in your case. (And similarly, a church might not recognize a civil annulment obtained in a court of law).

What is the difference between an annulment and a divorce?

The primary difference between annulment and divorce lies in the validity of the marriage. A divorce ends a legally valid marriage. An annulment, by contrast, is a legal ruling that declares that a marriage is not legally valid and never was legally valid. 

Grounds for an annulment vs. grounds for a divorce

So, divorce ends legally permissible marriages, whereas annulments terminate marriages that were never legally valid in the first place. When a couple gets divorced, they both acknowledge that their marriage was legally valid and would like it to end. 

Grounds for divorce differ by state, but generally, common grounds for divorce include adultery, irreconcilable differences, and abandonment. If a divorce occurs due to the actions of one spouse – such as adultery – the divorce is considered a “fault” divorce, meaning the filing spouse must prove that the other spouse's actions caused the marriage to end. 

Grounds for annulment, meanwhile, typically include the ones mentioned above (e.g., underage marriage, bigamy, fraud, incest, etc.).

What is the timeframe for an annulment vs. a divorce 

People often assume that a very short marriage can be ended with an annulment due to the brief duration. However, the length alone is not legal grounds for an annulment, and an extremely brief marriage would still need to cite one of the grounds listed above in order to receive an annulment. 

Each state has its own limitations on how long a couple has to file for an annulment after marriage. For example, California gives couples four years after marriage to file for an annulment if the grounds are physical incapacity, age, or force. Because these time limits can vary by state, it is important to check the laws of where you live. 

Meanwhile, divorces can be filed very shortly after a marriage occurs. However, in some states, a couple must be married for a minimum period and meet the state's residency requirements to file for divorce.

Consequences of annulment vs. divorce

The aftermath of an annulment is significantly different than that of a divorce. Because a marriage is considered to have never legally occurred once an annulment is granted, there is no division of property between former spouses. Additionally, spouses cannot seek alimony from their former partner after an annulment.

If the couple who is granted an annulment has children, those children are still considered legitimate (i.e., not born to unmarried parents). However, in some states, annulment changes the presumption of parentage, and the judge must establish the children's parentage. 

Once parentage is established, the judge will determine custody and support requirements as if it were a divorce proceeding. The children are entitled to the support of both parents, even if their marriage is deemed invalid.

Benefits of an annulment vs. divorce

It’s important to note that divorce and annulment are two different procedures that are filed for different reasons – not every couple will have the option to choose between an annulment or a divorce. However, if you are in a position to choose between seeking an annulment or a divorce, an annulment may have certain benefits.  

One possible benefit of an annulment is the protection of your assets. The court aims to put people seeking annulments in the same financial position as they were in before the marriage. An annulment could allow you to exit your marriage without dividing assets or owing alimony. 

The other possible benefit of annulments is for individuals seeking both a civil annulment and a religious one. For certain religions, an individual who was previously divorced cannot get married again in the eyes of that religious institution. In these scenarios, getting an annulment could allow a person affiliated with such religions to get married again, whereas a divorce would be viewed differently.

Frequently asked questions about annulments

What qualifies you for an annulment? 

An individual qualifies for an annulment when they have legitimate grounds (reasons) to believe that their marriage is invalid. These reasons are listed above and include:

  • Bigamy
  • Fraud
  • Incest
  • An underage spouse
  • Mental incapacity

Can you marry after an annulment? 

Yes, a person is free to legally marry after receiving an annulment. 

Religious individuals may need to receive a religious annulment from their religion’s tribunal to get married again in the eyes of their religious institution. A religious annulment is distinct and separate from a civil annulment. 

If you’re curious about remarrying after a divorce, check out our article on how long after a divorce can you remarry.

How is divorce different from annulment?

Divorce is different from annulment in a few ways, as covered throughout this article. 

To recap, the primary difference between divorce and annulment is whether the marriage is considered valid. In a divorce, the marriage was valid but is now being legally terminated. An annulment, meanwhile, undoes a marriage that was not legally valid in the first place. 

Divorces can also be different from annulments in several other ways, including how long they might take, how expensive they might be, and what the legal consequences are. For instance, you cannot seek alimony for an annulled marriage, but you could pursue it during a divorce. 

Why is an annulment better than a divorce? 

Keep in mind that an annulment is not necessarily better than a divorce. A divorce and an annulment are two separate procedures that are often brought for different reasons. 

A person seeking to end their marriage must evaluate why they want to exit their marriage. Depending on their reasons, an annulment may provide more relief than a divorce and vice versa. (For instance, you would not be able to seek alimony after an annulment, but you could during a divorce).