The Difference between an Annulment and a Divorce

 In Law Planet

divorceI frequently receive phone calls from clients wanting an annulment as opposed to a divorce, but not really knowing the difference. Florida is a no-fault divorce state which means neither side needs to prove any fault or wrong doing on the part of the other in order to get a divorce. All the judge wants to hear is that the marriage is irretrievably broken. Most of the time, the judges don’t care why and frequently don’t ask any follow-up questions regarding efforts to repair the problems. Most divorces in Florida can be resolved within three to six months of the filing date. Annulments are possible in Florida, but it is rare to see them filed as it is sometimes quicker to go the divorce route.

But what really is the difference? A divorce ends a legitimate valid marriage and the entry of the divorce judgment implies that there was a valid marriage. An annulment is a legal fiction that declares the marriage never happened in the first place. A good example of the use of an annulment would be if a person found out that their newly married spouse was still married to someone else. Or perhaps after the wedding, there was a quick determination made that the person married was mentally ill or did not have the capacity to agree to marriage. (Think Britney Spears 2004 fiasco marriage to her childhood sweetheart Jason Alexander. She filed for divorce the day after the marriage citing she lacked mental capacity at the time!)

There can be other reasons for choosing the annulment route over seeking a divorce. Fraud or misrepresentation regarding a person’s identity or even the woman’s ability to have children has been previously used to seek an annulment. Inability or refusal to have sexual intercourse with the newlywed spouse is also technically a common-law reason for annulment.

There can be legal insurance reasons for seeking an annulment as well. Some life insurance and employer benefits packages offer payouts to the “spouse”. Some plans give absolute rights to that person just because they are married. Sometimes an annulment is needed in order to wipe out the “marriage” in order for someone else to receive the benefits.

Candidly, the only time I’ve ever seen an annulment used is when it was determined that the new spouse was still married at the time. An interesting question arises regarding alimony from a prior marriage, when annulments are sought and obtained. If the subsequent marriage is declared to have never existed in the first place, does that reinstate alimony paid to the now “unwed” former spouse? That issue has actually never been addressed in Florida. It remains to be seen if a prior spouse could still be on the hook for alimony payments that would naturally end when the recipient remarries.

Having an experienced family law attorney who knows these distinctions is important when deciding to terminate a marriage. Experienced lawyers know the differences and the strategic benefits of going one route or the other. Don’t make decisions on hiring an attorney based on who is the cheapest. That will frequently come back and haunt you!

Image courtesy of freedigitalphotos.net by David Castillo Dominici

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