Divorce is the legal process of ending a validly entered-into marriage, including permanent settlement of marital matters like support, child custody and property division. When a spouse wants to end their marriage, filing a petition for divorce is the first official step.
When is annulment an option and what is the difference?
Annulment is a “declaration that a marriage never legally existed,” according to Florida Family Law, Florida Practice Series. In other words, the relationship was never officially marital, but was always void or voidable because a circumstance existed preventing its legality.
During annulment proceedings – also initiated by court petition – the judge may order temporary alimony, court costs or legal fees from the other party. (It is important to distinguish civil annulment from religious annulment, which is a separate process within certain religious institutions that does not annul a marriage under state law.)
State laws control divorce and annulment. In Florida, situations where the court would normally grant an annulment include:
- Parties are closely related by blood (in Florida, incest for this purpose means a marriage with a lineal descendant or lineal ancestor, brother or sister, uncle or aunt, or nephew or niece)
- A party was not of legal age to marry and did not obtain appropriate permission from parents or a judge, with some exceptions
- A party lacked mental capacity to consent to marriage (for example because of mental illness, developmental disability, coma, intoxication or other reasons)
Marriage based on fraud is voidable through annulment
Annulment because of fraudulent acts by one of the parties can be legally complex. Examples of marital fraud include when one party may have disguised their true identity or agreed to marriage with no intention to live as a married couple or consummate the marriage. Broadly, even if fraud existed, if the victim of fraud embraced the marriage and lived willingly as a married person, including consummation of the marriage, they probably cannot convince a Florida judge that annulment is appropriate.
Annulment when marriage was always void
A marriage is void from the start and never legally existed if it occurred during circumstances that prevented the marriage from taking legal effect. Conditions preventing a valid marriage include permanent mental incapacity or bigamy. Consummation cannot make a void marriage legal. Surprisingly, an incestuous marriage is not void from the inception, but voidable through annulment.
In contrast to divorce, an annulment normally prevents either party from later claiming rights as a former or surviving spouse under public benefit programs, Social Security, private life insurance and the like.
An experienced Florida family lawyer can answer questions about whether annulment is an option in a particular marriage or whether divorce is the appropriate manner of ending the marital relationship. Annulment can raise complicated legal and factual issues, and an attorney can assist with the process.