Annulment vs. Divorce: What’s the Difference?

	Annulment	Divorce
What happens	Establishes that the marriage was never valid based on certain grounds	Termination of a valid marriage by court order
Marital status after	Once the marriage is annulled, you are considered “single,” and it is as though you were never married.	Once divorced, you are considered free to remarry, but your marital status is “divorced.”
Grounds	Fraud or coercion Bigamy Incest Under the age of consent per state statute Lack of capacity (including insanity) Inability to physically consummate marriage	Divorce can be for “fault,” but can also be “no-fault” due to circumstances such as “irreconcilable differences.”
Division of property	Assets titled in one spouse’s name will likely remain with that spouse. Joint assets must be divided.  Different states will divide property differently, depending on where the couple is located. Prenuptial agreements may be enforced if the outcome without its enforcement would be unjust.	Property, whether “separate,” “marital,” or “community,” will be divided based on state law. Valid prenuptial and postnuptial agreements that are in place will be honored.
Child support	Children of an annulled marriage are “legitimate.” Child support will be calculated by state statutory formulas.	Children of a divorced couple are “legitimate.” Child support will be calculated by state statutory formulas.

How the Processes Work

Both annulment and divorce are legal proceedings in state court that result in the termination of a marriage. The main difference  is that when you annul your marriage, it voids the marital transaction and it is as though the marriage never happened. The marriage may be “erased”; however, be aware that there will be court records in the jurisdiction where the proceeding was filed, as annulment typically ends with a decree signed by a judge. Once your marriage is annulled, as long as you were not already previously married, you are once again considered “single.”

When you divorce, unlike annulment, you are not contesting the validity of the marriage; you are instead asking for judicial intervention to dissolve it. Records of your divorce will be searchable in the jurisdiction where you filed. Once you are divorced, your marital status is labeled as “divorced.”

It should also be noted that annulment from a legal standpoint is different from annulment from a religious standpoint. A civil annulment refers to the process in which your marriage is deemed null and void by the government. A religious annulment, which also may be known as a declaration of nullity, is the process by which your marriage is deemed null and void by the religious denomination that performed the marriage.

While the grounds for both may overlap in some ways, the religion will have its own criteria that must be met, and it is an entirely separate process from your civil annulment. If you wish to have your marriage annulled in the eyes of your religion, you will need to consult someone from that particular religious institution to commence that process.

Grounds for Annulment

Grounds for annulment include:

• Fraud or coercion: These elements must have been material in the other spouse’s consent to marry; for example, lying about being pregnant to coerce marriage.
• Force or duress: One party was forced to give consent to marry by the other.
• Bigamy: One of the parties was married to someone else at the time of the marriage.
• Underage: The consenting party was below the age of consent to marry and lacked proper parental consent, where applicable.
• Lack of capacity (including insanity): A party was unable to understand the nature, effect, and consequences of marriage because of mental incapacity or, in some jurisdictions, if a party becomes incurably insane for a statutorily required period of time. Also, can apply to the fact that one party was physically unable to have sex at the time of the marriage.
• Incest: Different rules in different states will determine what relationship is considered incestuous; however, typically it is relations with whom you share direct blood (siblings, half-siblings, parent, uncle/aunt and niece/nephew, etc.).

States may also require that the annulment be requested within a certain period of time after the marriage or upon learning of the grounds. A party’s continued cohabitation with the other party after discovery of the grounds may also hamper their ability to obtain an annulment.

Because marriage is presumed to be valid, the burden of proof falls on the party moving for the annulment, so the petitioning party must be prepared to show that one of the applicable grounds exists.

Grounds for Divorce

Grounds for divorce include “fault.” A divorce for “fault” typically includes cruel and inhuman treatment, abandonment, and adultery:

• Cruel and inhuman treatment can include physical or emotional abuse.
• Abandonment means that your spouse left without your consent, without intention to return, and has been gone for a period of time set out by the state law.
• “Fault” may also include the long-term incarceration of one of the parties.
• Adultery has obvious meaning; however, meeting the criteria required by state laws to prove adultery can be quite difficult as a third-party witness is often needed to testify about the adultery.

In order to get a judgment based on a “fault” ground, the party seeking the divorce has the burden of proof to show the existence of such grounds.

A “no-fault” divorce can be sought on the grounds that the parties are living apart as part of a separation agreement or separation decree issued by a judge. It also includes irreconcilable differences and irretrievable breakdown of the marriage:

• A separation agreement is an agreement between the parties to live separately forever. It should address the financial aspect of separating, child custody and support, and should be filed with the court.
• A separation decree can be granted by a judge, sometimes based on “fault.” 
• Having a decree of separation may allow the party to move for no-fault divorce in the future.
• Irretrievable breakdown, also known as irreconcilable differences, allows one party to unilaterally move for divorce if they can prove that the relationship has broken down, and has been broken down for a certain period of time, and that all marital property distribution, child custody, and child support issues were resolved by the parties or by the court.

Typically, only the parties in the marriage have standing to petition the court for dissolution of the marriage by annulment or divorce, but there may be circumstances where a third party has such standing. This may be true particularly when one of the parties is a minor or is incompetent and there is a legal guardian in place.

Division of Property

Because most annulments occur fairly early on in the marriage, division of assets might be pretty simple. In these cases, the idea is to return each party to their premarital financial state. The parties keep the assets that are titled in only their names, and any joint assets will be divided pursuant to that state’s laws. If property was acquired during the marriage, however, the distribution of assets can be tricky. 

Also depending on the grounds for annulment, a court may order division of property if at least one spouse was a putative spouse, meaning they believed the marriage was legal.

With respect to divorce, your assets will be distributed as directed by state law unless you have a valid prenuptial, postnuptial, or separation agreement. Typically, each spouse’s separate assets will remain with the individual spouse, and all assets acquired during the marriage will be distributed following the applicable agreement (if valid), or by state law. Consult with an attorney to find out if your state uses the principles of equitable distribution or community property.

It is possible that prenuptial agreements can include provisions that dispose of property even in the event of an annulment as well.

Child Support

A child born into a marriage that is eventually dissolved by divorce or annulment is still considered a “legitimate” child, and as such, a non-custodial parent may still be required to pay child support. Child support is paid to the custodial parent and is often based on a percentage of total parental income.

Annulment or Divorce: Which Is Right for Me?

In the scenario in which there is a putative spouse and an annulment may void a prenuptial or postnuptial agreement for any reason (including a lack of language in the agreement), then it is possible that the putative spouse could receive a financial windfall they might otherwise not be entitled to.

Additionally, if a spouse seeking an annulment lives in a jurisdiction where marital assets will be distributed following the terms of contract and real property law, not the rules of equitable distribution or community property, they may realize more of a financial benefit if such marital property is titled solely in their name. However, it is imperative to speak to an attorney in such jurisdictions because it is highly unlikely that the court would allow property to be distributed in any way that is grossly unfair.

Common Misconceptions Around Annulment Versus Divorce

Annulment Is Better for Short-Duration Marriages Than Divorce

The grounds for annulment are different from divorce. If your situation does not meet the statutory criteria to void the marriage via annulment, then you must get a divorce. Duration of the marriage is not always relevant, although there are certain conditions and statutes of limitations that may determine different grounds for annulment.

Annulments Cost More Than Divorce

To compare costs between the two and state that one costs more than the other is incorrect. A simple, uncontested divorce in which the partners agree on the distribution of assets (or if there are few assets to distribute) could cost far less than an annulment of a marriage that lasted many years but ended because it was discovered that one spouse was already married, for instance. In the latter situation, you can see how it may be more complex, and thus more costly.

You Can Better Protect Your Assets in an Annulment Than in Divorce

The concept that you can better protect your assets in an annulment compared with a divorce is incorrect. Many courts will still use the same principles of distribution for property acquired during the marriage as they would in a divorce. Additionally, your prenuptial or postnuptial agreement may still be valid even if your marriage is annulled. Most important, courts tend to skew from ordering results that are unconscionable or grossly unfair.

Frequently Asked Questions (FAQs)