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Annulment: How is it Different from Divorce?
A marriage can be legally ended by either divorce or annulment. There are distinct differences between the two that are important to understand if you are contemplating ending your marriage. Simply put, in a divorce (also known as a “dissolution of marriage”), the court is asked to end a legally valid marriage. An annulment, on the other hand, cancels a marriage between and man and a woman, essentially “erasing” it and declaring that it never technically existed at all.

An annulment can only be granted when the marriage is deemed to be either illegal or invalid. While an annulment proceeding can be initiated by either the husband or wife, the party initiating the annulment must prove grounds for an annulment.

Common Grounds Used to Petition for an Annulment
  • Minority: At the time of the marriage one of the parties did not have the legal capacity to consent to the marriage because he/she was under the age of 18 and did not have parental consent or permission from the court.

  • Bigamy: If either party was already married to another person at the time of the marriage; exceptions apply where the husband/wife from the prior marriage was absent and not known to be living for at least 5 years immediately preceding the date that the second marriage was contracted.

  • Forced Consent: If one of the parties was either forced or threatened into the marriage and only entered into it under duress then his/her consent to the marriage would be deemed invalid.

  • Fraud: Where one of the spouses agreed to the marriage simply based on the misrepresentations or lies of the other.

  • Incest: In California, if the marriage is between relatives closer than first cousins, then the marriage will be deemed void.

  • Mental Illness: Where either spouse was mentally ill at the time of the marriage.

  • Mental Incapacity: Where either spouse was under the influence of alcohol or drugs at the time of the marriage and as a result was unable to make informed consent.

In order for any of the above to be grounds for an annulment, it must have existed at the time of the marriage. It is important to note however, if the circumstance was later eliminated or became known to the party wishing to annul the marriage, and thereafter that party continued to freely cohabitate with the other party as husband and wife, the circumstance may no longer be grounds for nullity.

Differences Between Annulment and Divorce

Divorce attorneys are often asked the question: "How does an annulment affect me versus a divorce?" With respect to property rights, the differences between annulment and divorce include:
  • Spousal Support
  • The husband or wife can seek spousal support after a divorce. However, neither can seek support after an annulment because the marriage was never actually valid from the beginning.

  • Division of Property
    Property that has been acquired by either party during a valid marriage is generally considered to be community property, which is subject to division during a divorce. However, generally, property that is acquired by a party during an invalid marriage will remain his or her separate property. Therefore, it is important to carefully consider the legal implications of filing for an annulment rather than a divorce.
Getting an annulment may prove to be a complex task. If you have questions regarding whether or not you may qualify for an annulment, it is in your best interest to seek the assistance of an experienced divorce attorney. If you wish to schedule a consultation with Nancy J. Bickford, the only divorce attorney in San Diego County who is a Certified Public Accountant (CPA) and a Certified Family Law Specialist (CFLS), call us at (858) 793-8884.