Divorce vs. Annulment

It's been replayed in countless movie scenes and even in some real-life instances in the press. Someone wakes up the morning after tying the knot and cries, "What have I done?" Then, after a few plot twists and some speculative intrigue, she rushes to the nearest lawyer and files for an annulment.

It's that easy, right? Wrong. Although the exact rules vary by state, getting an annulment can be a complicated business. In some cases, you might be better off divorcing instead. Here's an explanation of some of the complexities involved.

The fundamental difference between divorce and annulment in NJ is that divorce terminates an existing marriage. An annulment is a legal decree that states the marriage never happened. Of course, if that's all there was to it, the divorce rate would plummet and annulment statistics would skyrocket. You need special grounds to qualify an annulment in NJ, a reason your marriage should not be legally recognized as having happened.

Marriages are annulled because they are either void or voidable. A void marriage is one that was illegal at the time it was entered into. Grounds for a void marriage include bigamy, wherein at least one spouse was still married to someone else at the time. One or both parties may have been under the legal age of consent, not old enough to enter into marriage without a parent's or the court's consent. Also grounds for a void marriage is incest, when spouses are so closely related the union is prohibited by law. These are pretty black-and-white scenarios.

Voidable marriages are more subjective. A circumstance existed at the time of the marriage that makes it unreasonable to recognize the marriage or expect the parties to stay married. The most common grounds for annulling a voidable marriage include fraud, impotency, force or coercion, or at least one spouse being of unsound mind at the time. Fraud grounds typically involve one party lying about something that's fundamental to the union. This doesn't mean pledging undying loyalty to the Dallas Cowboys when, in fact, she's an Eagles fan. It means saying she wants six children when, in fact, she hates kids, or representing that she's an heiress when she works for minimum wage and her family is as broke as she is. Impotency is self-explanatory -- at least one partner is unable to perform sexually to consummate the marriage. Force involves the threat of something dire occurring if the marriage doesn't happen. Unsound mind can be the result of drugs or alcohol, or a bona fide condition that makes it unlikely the party understood the implications of what she was doing at the time she married.

It's not enough in some states to simply have grounds for annulment. You must act to annul the marriage within a certain period of time for some grounds, and in others, you cannot continue to live together after the grounds are discovered. If your spouse was impotent at the time of your wedding but later recovered and you continued with the marriage, you've lost your grounds for annulment. The same usually applies to fraud grounds; if you continue to live together after uncovering the lie, you can't qualify for an annulment.

Children of an annulled marriage are usually considered legitimate, even though the marriage is ruled not to have happened. Child support and custody terms can be addressed by the court if you annul the marriage.

Most annullable marriages are of short duration and don't result in a lot of joint debts or property. If you and your partner managed to acquire property or debts during the term of your marriage, or if you believe you may be entitled to spousal support, filing for divorce may be the better option. The court may decline to address these things in an annulment proceeding. Many states will not award alimony in annulment proceedings.

If you decide to file for divorce instead, all 50 states now have some form of no-fault divorce on their books, so you can end the marriage without meeting and proving a lot of requirements and deal with issues of property and spousal support if appropriate.

If you have any questions concerning divorce or annulment in NJ call Peter Van Aulen, a New Jersey Divorce Lawyer, at 201-845-7400 for a free initial consultation.