Annulment or Divorce? Which Can I Choose?

If you have a brief marriage with no children, no joint property, assets or debts, can you simply end your marriage with an annulment rather than a divorce? Under Florida law, the requirements to obtain an annulment are quite different than the grounds for seeking a divorce (a ‘dissolution of the marriage’). Compared to divorce cases, actions for annulment are fairly rare in Florida and there is no specific statute creating a right to an annulment which is a creature of case law and common law.

To begin, an action for annulment requests a court to declare a marriage as invalid (‘void’ or ‘voidable’) from its inception. What renders a marriage invalid from the beginning? If the marriage was a product of fraud, duress, illegality, incompetence or undue influence exerted by one party to the marriage against the other. Here are some examples of each: Prior to the wedding, one party does not tell the other party that he or she is already married to someone else. (This often occurs where the party was married overseas and never obtained a divorce.) Also, where one party was under the influence of drugs or alcohol at the time of the ‘wedding’ and was unaware of the ceremony. Illegality can occur if the parties being married are legally incapable of marriage, such as between siblings or where one party is underage or is a minor and cannot marry without parental consent and no consent was obtained.

In an annulment proceeding, which can only be brought by the ‘innocent’ party against the other, a court will hear evidence supporting the invalidity and, if proven, enter a judgment annulling the marriage. From that moment forward, the marriage is deemed of no legal affect from the date of the so-called ‘wedding’. Any property or debts incurred during the period of the annulled marriage as treated as if the couple was never married.

There is a significant difference between ‘void’ and ‘voidable’ marriages particularly where children are concerned. Children born during a ‘void’ marriage are deemed to be ‘illegitimate’ in an annulment action. However, children born during a ‘voidable’ marriage are deemed to be legitimate once the impediment to the marriage is removed. (For example, the spouse who was drunk at the marriage later becomes sober and declares the marriage to be valid.) Voidable marriages are deemed valid until they are annulled. Void marriages cannot be cured.

To answer a common question, if a marriage is not consummated (i.e., there has been no sexual activity between the couple) is that relevant to determining if the marriage is valid, void or voidable? If the lack of sexual activity is due to impotence by one party (the inability to engage in intercourse), that may render a marriage voidable. However, once this physical condition is discovered, the action for annulment must be initiated without delay or the court may consider the issue to have been waived due to an unreasonable delay in beginning the annulment case.

If you are unsure whether your marriage is subject to an annulment or a divorce action, please contact our office to discuss your rights and options.

To learn more about my firm and speak with an experienced matrimonial and family law lawyer, email me or call (786) 281-5015.