Annulment vs. Divorce: What’s the Legal Difference?

What is an annulment, and what is a divorce?

An annulment treats a marriage as if it never existed, while a divorce ends a valid marriage. Both are forms of marriage dissolution, but they have different legal grounds, processes, and implications.

Let’s begin by defining these terms.

• Annulment: A legal procedure that deems a marriage null and void. An annulled marriage is erased from a legal perspective, and it declares that the marriage never technically existed and was never legally valid.
• Divorce: A legal procedure that cancels a legally valid marriage. It does not erase the marriage but rather acknowledges it existed and ended.

What are the legal grounds for annulment vs. divorce?

To receive an annulment or divorce, one or both spouses must demonstrate legal grounds that meet their state's requirements. The court evaluates these grounds when deciding whether to grant the petition.

Below, we address some specific grounds for a legal annulment, no-fault divorce, and a fault-based divorce.

Annulment

While state laws vary, certain grounds for annulment are recognized nationwide. Either spouse can initiate an annulment, but they must prove valid grounds for the court to declare the marriage null and void.

Common grounds for annulment include the following:

• Bigamy. Either party was already married to another person at the time of the marriage.
• Forced consent. One of the spouses was forced or threatened into marriage and only entered into it under duress.
• Fraud. One of the spouses agreed to the marriage based on the lies or misrepresentation of the other.
• Marriage prohibited by law. States prohibit marriage between parties with close familial relation, although the definition of “close” varies by state.
• Mental illness. Either spouse was mentally ill or emotionally disturbed at the time of the marriage.
• Mental incapacity. Either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent. This includes if a spouse had mental issues or a psychological incapacity that made them unable to consent to the marriage.
• Inability to consummate marriage. Either spouse was physically incapable of having sexual relations or impotent during the marriage.
• Underage marriage. Either spouse was too young to enter into marriage without parental consent or court approval.

No-fault divorce

Each state can have either a no-fault divorce or a fault divorce, also known as an at-fault divorce.

A no-fault divorce dissolves a marriage without naming either spouse as the "guilty party."

Because there is no issue of blame, irreconcilable differences tend to be the legal ground for a no-fault divorce, and neither party needs to detail the nature of those differences.

In the absence of a guilty party, some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional "fault" divorce.

Fault-based divorce

A fault-based divorce requires one spouse to prove adequate grounds, such as substance misuse, addictions, untreated or chronic mental illness, or conviction of a crime. However, the exact grounds vary by state, and some states don't even accept fault-based divorces. 

Here are a few other common grounds for fault-based divorce:

• Adultery. One or both spouses engage in extramarital relationships with others during the marriage.
• Desertion. One spouse abandons the other, physically and emotionally, for a lengthy period of time.
• Physical/emotional abuse. One spouse subjects the other to physical or violent attacks or emotional or psychological abuse, such as abusive language and threats of physical violence.

Key process differences between annulment and divorce

While the processes for obtaining an annulment vs. divorce share some similarities, there are some key differences.

Let's start with the similarities. To initiate a divorce or an annulment, the following steps need to take place:

• File a petition. The spouse seeking to dissolve the marriage must file a petition with the court, requesting permission to receive the divorce or annulment.
• Serve the petition. The petitioning spouse must formally serve the annulment or divorce documents to the other spouse or respondent.
• Respond to the petition. The respondent must address the papers, agreeing or disagreeing with the terms. The papers will then be filed with the court.
• Attend a court hearing. If there is any disagreement, both parties must present their evidence, testimonies, and legal grounds in court.
• The court decides. The court will make a decision and either grant or deny the petition.

Now, let's move on to some of the differences between the annulment vs. divorce processes.

• Scrutiny of legal grounds. Because an annulment is granted based on specific circumstances, courts tend to be stricter when assessing legal grounds for annulment than for divorce. This can also make it more difficult for the petitioning spouse to establish grounds for an annulment, especially compared to the more lenient grounds needed for divorce.
• The window of opportunity. A spouse can file for divorce at any point in their marriage, but there are some time constraints associated with certain grounds for annulment. For instance, some jurisdictions require a spouse to file an annulment within one or two years of discovering the issue.
• Complexity. Divorce proceedings can be more complex than annulments regarding decisions related to spousal support, child custody, and property division. Divorce involves the appropriate division and distribution of assets between the spouses. Meanwhile, annulments typically revert couples to their pre-marriage financial status unless the court needs to sort out other details like child support or property divisions, but we’ll explore that more later.
• Duration. Some jurisdictions impose waiting or separation periods, which can lengthen the time it takes to finalize the divorce. In contrast, an annulment typically doesn't involve lengthy legal proceedings, as many only take a few months to finalize. 

Other considerations

When comparing annulments and divorces, it's important to look at their implications for important legal and personal matters.

Parental and spousal rights

An annulment formally declares a marriage null as if it never existed, so spousal support usually isn't an option. Essentially, both parties will revert to their pre-marital financial statuses.

That said, the courts would help divide assets or property acquired during the marriage, such as real estate, bank accounts, and investments. As for children born within an annulled marriage, they are still considered “legitimate” with regard to their legal rights. So, despite the fact the marriage was nulled, the child still qualifies for child support and custody arrangements, which are determined in court.

In comparison, spousal support is one of the main considerations addressed during divorce proceedings, and there are many alimony options available. This may also include equitably dividing property and debt shared by the two parties or acquired during the marriage. As for children, child custody and support arrangements are also decided in court.

Legal implications

An annulment is a legal ruling that erases the marriage so you can legally say you weren't previously married. However, an annulment does not erase the marriage certificate on record, meaning your marriage history will reflect an annulled marriage, and your annulment court proceedings will be on record, too.

Conversely, with a divorce, your marriage is still regarded as legal, meaning your records will show your status as divorced. Your marriage certificate will remain on file with your divorce certificate and a record of your divorce proceedings.

Social considerations

Unfortunately, divorce continues to carry a lot of stigma, particularly in religious communities. Divorce can also make it challenging to navigate personal relationships and future partnerships. Although those who get an annulment may face similar challenges, annulments are often more socially accepted than divorces.

5 reasons to consult a divorce lawyer

If you're looking to get an annulment or divorce (or you're unsure which one to get) it's best to consult with a divorce lawyer or family law attorney.

A qualified attorney will provide information and legal advice regarding divorce and annulment to help you navigate ending your marriage. 

Below are just five of the many reasons why we recommend meeting with a professional.

Legal guidance

A divorce lawyer will review your circumstances and help you determine whether an annulment or divorce is the best course of action. They will explain the legal process, your legal rights, and what you can expect when ending your marriage.

Advice on implications

When consulting with a divorce lawyer, they'll ensure you understand the implications of an annulment or a divorce and how it may impact your parental responsibilities, financial situation, legal status, and more.

Navigating the process

Litigation can be confusing, so your lawyer will guide you through the entire process, from filing a petition to representing you in court. They'll also ensure you meet the criteria and follow all the appropriate procedures.

Negotiation and representation

Your lawyer is on your side, so they'll advocate for you in court. They'll help negotiate, mediate, and resolve disputes in your favor.

Protection of rights

Your divorce lawyer knows the law inside and out, so they can help protect you and your rights. They'll help ensure you receive fair treatment and that any alimony, custody, and financial arrangements are reasonably calculated by the law.

Annulment vs. divorce FAQs

How do prenups work in cases of annulment vs. divorce?

Before getting married, a couple sometimes signs a prenup, which is a legal contract stating what happens to their assets if they separate. In a divorce, financial decisions follow the terms outlined in the prenup. In an annulment, the prenup is usually considered invalid since the marriage itself is deemed legally invalid.

Are children considered legitimate if a marriage is annulled?

Yes, children born into an annulled marriage are considered legitimate and qualify for child support. Therefore, parental responsibilities, such as child support and custody rights, are determined during the annulment court proceedings.

How do I know if annulment or divorce is right for me?

If you're unsure which path is right for you, consult a divorce lawyer. They will review your situation, explain the implications of both, and help you decide which is the best decision based on your circumstances.

What is the difference between a legal annulment and a religious annulment?

A legal annulment is granted by a court of law, while a religious annulment is declared by a church or religious institution under its own rules. However, a religious annulment usually doesn’t mean the marriage is legally annulled in the eyes of the law.