A nullity of marriage if a finding that the marriage was not legally valid from the beginning. It is also referred to as an annulment.
An annulment is one method of having a marriage or union legally terminated. It is similar to a divorce in many aspects, except that it is retroactive, which means it is treated as though it never existed.
Because of this, there are effects which go back in time to the beginning of the marriage. Nullities of marriage are typically more common for shorter marriages than for marriages which have lasted for many years.
In certain cases, it is much easier to obtain a divorce than to get an annulment. For example, in some states, there are no-fault divorce laws, which means that the couple may get divorced even if neither party was at fault.
In contrast, an annulment must typically be based on factors including:
- Misrepresentation or fraud in the original marriage documents, for example, one of the partners lied about their age;
- The concealment of an important fact or facts related to the marriage;
- A refusal or the inability to consummate the relationship; and
- Misunderstandings regarding the circumstances of the marriage.
Therefore, one of the main requirements for an annulment is that there needs to be a reason why the marriage would be considered void. In contrast, a divorce typically has more to do with the inability of the partners to reconcile their differences during the marriage.
If a couple is considering having their marriage annulled, it may be in their best interest to consult with a local family attorney to determine if that is an option. Annulments are not always available.
In addition, in some jurisdictions, there are strict regulations on annulments and when they are permitted which may require the individuals to request a divorce instead. An attorney will be able to help the couple with the divorce process as well if that is the route they are required to take.
When Will a Nullity of Marriage be Granted?
There are several examples of why a nullity of marriage would be granted. Some common reasons include:
- Intoxication by one or both spouses;
- One or both spouses were still legally married to another individual, called bigamy;
- One of the spouses was under age; or
- The individuals entered into the marriage solely for immigration purposes.
There are only a handful of the reasons why a nullity of marriage may be granted. A nullity of marriage may be granted for a number of reasons if there are suspicious circumstances which existed at the time of the marriage.
What is the Difference Between a Nullity of Marriage and a Divorce?
There is a difference between a nullity of marriage and a divorce. With a divorce, a court is being asked to dissolve a marriage which is legally valid.
With a nullity of marriage, a court is being asked to make a determination, or a finding, that the marriage was never valid to begin with. Therefore, if the marriage that an individual is trying to end was consensual and did not have any anomalies, they will probably be required to seek a divorce.
If there was an anomaly which existed at the time of the marriage, a nullity of marriage may be the proper request to make.
When is a Nullity of Marriage Preferable over a Divorce?
There are two factors which would make an annulment the preferable option over a divorce, including the division of property and remarrying.
With a nullity of marriage, it is as if the individuals were never married. Therefore, they will not be subjected to marital property requirements.
These marital property laws may include the ½ rule which is associated with community property laws in some states. In addition, each individual will be permitted to keep the property that they owned when they entered into the marriage.
In certain religious contexts, it is preferable for an individual to have a record of their annulment rather than a divorce. For example, under the tenants of some religions, it may be easier for an individual to remarry following an annulment as compared to a divorce.
It is important to remember that each case is unique and the individuals will have different needs. Therefore, in some cases, a divorce may be preferred over an annulment, and vice-versa.
How Does an Individual Obtain a Nullity of Marriage?
In order to obtain a nullity of marriage, the individuals will be required to comply with the procedural requirements which are set out in the laws of the state in which they were married. Generally, however, the annulment process involves the following steps:
- The individuals must ensure they are eligible to file a petition for a nullity of marriage;
- The party who is seeking the nullity of marriage will be required to complete the forms for the request, which are typically found at the local courthouse or online. There will be different forms for each state;
- Once the individual files the forms, they will be required to serve them on the other party as well as file a certificate of proof of service with the same family court in which they filed their initial nullity of marriage forms;
- After the non-filing party files their response to the petition, a hearing will be scheduled to review the nullity of marriage petition; and
- Depending on the facts of the case and the laws of the jurisdiction, the parties may be required to provide supplemental evidence to show why the annulment should be granted. If the court determines the petition should be granted, the court will issue a Decree of
- Annulment, which will finalize the nullity of marriage.
In addition, in some states, there are statutes of limitations which outline how long the individuals have to obtain a nullity of marriage. There are some states, such as New York, which do not place any restrictions on how long the couple has to annul their marriage.
What are the Consequences of a Nullity of Marriage?
If a nullity of marriage is granted, the court will deem the marriage invalid and it will be treated as if it never occurred. There are some consequences which may result if a court nullifies a marriage, including the revocation of a visa if that visa was obtained via marriage.
A nullification of marriage may also impact an individual’s retirement benefits as well as their inheritance.
Is There a Time Limit on When to File for Nullity of Marriage?
Although every state handles time limits on a nullity of marriage separately, there will likely be a time limit imposed. In certain states, an individual has only 60 days following the marriage to request a nullity, while, in other states, an individual may have up to 5 years.
It is important to note, however, that the longer the individuals remain married, the more difficult it will be to convince a court to nullify the marriage.
What Effect Does a Nullity of Marriage Have on the Children?
If a nullity of marriage is granted and the married couple had a child, there should not be any changes in issues including:
- Child support obligations;
- Parental visitation rights; or
- Parental status.
For the most part, whether the parties obtain a divorce of a nullity of marriage, the parental relationship remains the same.
Do I Need an Attorney for a Nullity of Marriage?
It is essential to have the assistance of a family attorney for any nullity of marriage, questions, concerns, or issues you may have. Your attorney can advise you whether a nullity of marriage or a divorce is the proper request for your case.
Should a nullity of marriage be the proper request in your case, your attorney will assist you with petitioning the court. Your attorney will also represent you any time you are required to appear in court.
