Annulments

Annulment is different from divorce. Divorce is where a valid marriage is ended. Annulment, by contrast, asserts that no marriage ever occurred or that the marriage is invalid. The Uniform Marriage and Divorce Act, adopted in many states, changes the terminology from annulment to a declaration of invalidity of a marriage.

An action to annul a marriage asserts essentially that, due to some problem, the marriage never actually occurred. One reason might be that a party to the marriage was already married to someone else and therefor was incapable a marrying again. Another reason could be incest or fraud. The reason could also be something less severe, such as that a necessary element of a valid divorce was simply missing.

The distinction between annulment and divorce can have significant consequences. It is also important to realize that the laws related to annulment of a marriage vary from state-to-state.

Jurisdiction

Generally the state with jurisdiction to grant an annulment of a marriage will either be the state where the marriage occurred or the state where the parties to the marriage are living at the time of the annulment. Although, some states, including California, will grant an annulment for no other reason than that the parties are personally in that state and present before the court.

Unlike divorce, there are generally no waiting periods for annulment. Thus, in almost every state, an annulment can be granted regardless of how long the marriage has continued.

Law

Many states will follow that it is the law of the state where the marriage occurred that should control. Thus, it is possible that, even if the parties are getting a marriage annulled in one state, it may be the law of another state, the state where they were married, that should be followed. Thus, one state may look to the laws of another to decide the annulment. This obviously becomes complicated. The services of an attorney are recommended.

Most states have statutes regarding annulment that can help clarify the procedure. States with statutes on annulment include: Arizona, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Kansas, Michigan, Mississippi, Montana, New Jersey, North Carolina, North Dakota, Ohio, Pennsylvania, Utah, Vermont, Virginia, Washington and Wisconsin.

Service of Process

States disagree about what service of process is required for annulment. Service of process is the presentation of legal papers providing formal notice to the other spouse that an annulment is being sought. This notice would allow the other spouse to fight the annulment in court. A question arises, however, when the parties are located in different states.

Most sates will require that the defendant be served in the state where the action for annulment is brought. Thus the spouse that wants the annulment may need to commence the legal action in the state where the other spouse is living.

Other states will provide for means of serving notice of the annulment, even if the other spouse is living in another state or even if the other spouse cannot be found. This again varies substantially state-to-state. A smaller number of states have the exact same requirements for service of notice of an annulment as they do for service of notice of divorce.

Implications of annulment as compared to divorce

Children

The difference between annulment and divorce can be very significant under certain circumstances. One important example of this is when there are children involved. Because an annulment dissolves the marriage, as if it never occurred, any children of that invalid marriage are considered illegitimate in many states.

Other states have passed statutes to protect the children. These statutes state simply that, even though the marriage is annulled, the children are still to be considered legitimate. These states include: Indiana, Montana, New Jersey, New York, Oklahoma, Pennsylvania, Virginia and Wisconsin.

A few states will look to whether one or both of the parents thought their marriage was valid at the time of conception in order to decide whether the children are legitimate or illegitimate.

Upon annulment, almost every state will still make some provisions for the support of the child, including those states where the children are considered illegitimate once the marriage is annulled. Child support laws do not require a marriage to have occurred. Although, the amount of support may be different that it would have been upon a divorce.

Alimony From a Prior Marriage

Since annulment is a declaration that no marriage ever existed, generally, this means that no alimony is granted. Alimony is usually available only upon a divorce. This is obviously an important distinction.

Most courts will award temporary alimony to the wife if the husband is seeking the annulment, as well as legal fees. But only until a decision is made by the court. Once the annulment is granted, the temporary alimony will end. In contrast, however, if the wife seeks the annulment then no temporary alimony can be granted. That is because, by bringing the action for annulment, the wife is arguing that the marriage is invalid.

An interesting implication could exist for those women who were receiving alimony and then remarried, only to later have the second marriage annulled. In some instances the first husband may need to resume making alimony payments and may even need to catch up on payments for the time period when the ex-wife was seemingly remarried. This is because, upon annulment, it is as if the second marriage never occurred.

Both New York and California courts have decided that once a wife remarries the first husband can forever stop paying alimony, regardless of whether the second marriage is later annulled. Most states will tend follow this result.

Social Security Benefits

Another question arises as to what happens if a widow is receiving benefits, such as social security, related her first husband, then remarries and later, the second marriage is annulled. These decisions also vary from state-to-state. In California, the widow would be able to resume receiving social security payments upon the annulment of her second marriage but in New York, she would not.