Divorce vs. Annulment: What’s The Difference?

In Florida, there are two main ways that couples can end their marriage: divorce and annulment. While divorce is more widely available, some spouses do have the option of obtaining an annulment. There are differences between the two in terms of the steps required and the legal consequences.

Fortunately, you don’t have to handle the decision on your own. The family law attorneys of Orlando Family Team can explain how divorce and annulment work and let you know what your legal options are for ending your marriage.

What Is An Annulment, And How Is It Different From A Divorce?

An annulment is not simply the termination of the marriage relationship, the way a divorce is. When a judge annuls a marriage, it’s because the marriage itself is invalid for some reason. So an annulment order not only ends the marriage, it treats the marriage as if it never existed.

Divorces are granted in Florida based on irreconcilable differences. Annulments, on the other hand, can only be granted in very specific situations. These situations exist where there is a defect in the marriage. To understand how this might arise, you need to know the difference between void and voidable marriages.

Void And Voidable Marriages

Only void or voidable marriages may qualify for an annulment. Void means the marriage never existed in the eyes of the law. That means it was invalid from the beginning. A marriage is considered void where one of the following applies:

  • One or both spouses are underage
  • One party was already married at the time of the second marriage (bigamy)
  • The spouses are closely related (incest)
  • One spouse is permanently mentally incapacitated or otherwise unable to legally consent to the marriage

A voidable marriage, on the other hand, is one that could – but not necessarily – be annulled based on the circumstances. Voidable doesn’t mean that the marriage was invalid, to begin with, but there is a potential that it could be. All void marriages can be annulled, but not all voidable marriages can be.

Another important distinction is that there is no way to repair a void marriage, in the eyes of the law. But a voidable marriage can be fixed. A voidable marriage will continue in effect unless and until it is annulled.

If one of the following applies to your marriage, you may be able to obtain an annulment because it is voidable:

  • Temporary incapacity. As mentioned above, if one spouse is permanently mentally incapacitated, the marriage is void. However, if at the time of marriage a spouse was only temporarily incapacitated, through mental illness or intoxication (drugs or alcohol), it is considered voidable.
  • Fraud. Some marriages would not have occurred if one spouse withheld important information from the other. If the marriage was therefore obtained by deception, misrepresentation, or one spouse tricking the other, it can be voided.
  • Forced marriage. A marriage by force or coercion can be voided. That includes threatening someone with harm if they don’t enter into a marriage. These cases are rare and difficult to prove.
  • Impotence. If at the time of marriage one spouse is impotent and the other spouse is not aware of that fact, the marriage is voidable. Generally, the longer the marriage lasts, the more difficult it becomes to use this as a reason to void it.

Legal Consequences Of An Annulment

Because an annulled marriage is treated as though it never occurred, it has many different legal consequences than a divorce. When spouses divorce, one or both parties can ask the court for a property division or alimony. These are not options for an annulment. Instead, the parties will leave the marriage with whatever property they began with. Courts can still decide issues of child support, child custody, and visitation if the spouses have children together.

How To Get An Annulment

Whether your marriage is void or voidable, you must have a court order the annulment. This starts with filing a petition to annul the marriage. You have to assert one of the above reasons as a basis for your request. Unlike divorce, no statute addresses annulments. That means judges have to reference case law to determine whether your case qualifies.

Annulments are never guaranteed, especially for voidable marriages. Every request for an annulment has to be considered on its own merits. Having good case law means you can point to a prior Florida case with facts similar to yours. You need a convincing argument for why the judge in your case should rule in your favor. That can be difficult if the facts in your situation are unusual or not exactly on point compared to prior cases.

The challenges of obtaining an annulment are many. Since there’s no statutory authority, judges are not always clear on whether they can annul a marriage. It’s also possible that one judge may rule differently than another on the same facts. Divorce, by comparison, is covered by statutes and fairly consistent case law. You’re much more likely to see variance among judges when it comes to an annulment.

Why Obtain A Divorce Rather Than An Annulment?

There are cases in which an annulment is either not possible or could prove more time-consuming and costly than a divorce. You will want to consider divorce rather than annulment if you have property you want to be divided or you wish to ask for alimony. Also, if you file for an annulment, your spouse may counterclaim, deny the reasons you’ve put forth to annul the marriage and ask for a divorce instead. That’s where you need the help of a dedicated domestic attorney.

Let Orlando Family Team Help with Your Divorce or Annulment

Before deciding which route is best for you, talk to the Orlando Family Team. We can review the facts in your case and advise as to what options you have. We will also explain the legal consequences of divorce versus annulment. Whichever way your domestic case goes, we will defend your best interests in court. It starts by scheduling your confidential consultation. Give us a call today.