THE AURIT CENTER

Understanding Divorce and Annulment: Your Complete Guide

Deciding between divorce or annulment can be simple, and we’ve broken it down for you. While both end a marriage, their legal requirements and implications differ.

This article will explore the differences between annulment and divorce to help you decide which option would best meet your needs.

What is a divorce?

A divorce is the legal ending of a marriage. It recognizes that the marriage did exist but is now over. It can be finalized through mediation or litigation.

The reasons for divorce can include:

  • irreconcilable differences;
  • marital misconduct; or
  • abandonment.

A divorce typically involves the resolution of key issues such as:

  • the division of assets and debts, like marital property;
  • child custody, a.k.a. parenting time and legal decision-making authority;
  • child support; and
  • alimony, a.k.a. spousal support or spousal maintenance.

Now, let’s look at the differences between fault and no-fault divorces.

Fault divorce

Fault divorces are rare in the U.S. because the spouses must have agreed to opt into it at the time of their marriage. Also, their state must allow them to opt in.

In a fault divorce, one spouse is named as responsible for the end of the marriage.

This could be due to:

  • adultery;
  • desertion;
  • cruelty;
  • substance abuse;
  • incarceration; or
  • something else along those lines.

A fault divorce can influence the court’s decision about alimony, property division, and child custody. So, when someone names their spouse as being responsible for the end of the marriage, they must offer evidence to support their claim.

No-fault divorce

A no-fault divorce does not require either spouse to prove that the other has done something wrong. Instead, the spouses say that they are experiencing irreconcilable differences. No-fault divorces are allowed in all states.

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What is an annulment?

An annulment is a legal process that deems a marriage null and void. After a marriage is annulled, legally, it is as if it never happened.

To get an annulment, the marriage must be shown to be invalid or void based on legal grounds. This is often a difficult task.

Situations that would make a marriage invalid or void include:

  • Fraud or misrepresentation: One spouse lied about something that directly affected the other’s decision to marry them. An example would be if they said they could have children knowing they couldn’t.
    According to the American Bar Association, fraud and misrepresentation are the most common reasons for annulment.
  • Incapacity: One spouse didn’t have the mental capacity to agree to the marriage. This could be due to having a mental health condition or being under the influence of drugs or alcohol.
  • Coercion: One spouse was pressured or forced into the marriage. For example, if one spouse threatened harm if the other didn’t go through with the marriage.
  • Incest, bigamy, or underage relations: The spouses are closely related, one spouse was already married to someone else, or one or both spouses were legally too young to marry.

How is annulment different from divorce?

While they both end a marriage, there are some key differences between divorce and annulment. Because an annulment essentially “erases” a marriage, it has unique legal, financial, and social implications.

Nullification of marriage

When a marriage is annulled, legally, it’s as if it never happened. By contrast, a divorce ends a marriage but acknowledges that it did exist at one time.

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Financial implications

In a divorce, spouses typically divide the marital assets. In an annulment, the courts usually aim to bring each person back to their pre-marriage financial state.

Social and religious acceptance

Despite how common divorce is, it still carries some stigma in certain social and religious circles. Although many religions allow for divorce, some religions find an annulment more acceptable.

Many people who choose annulment do so for religious reasons. This usually means their religion will then allow them to marry someone in the future.

Divorce vs. annulment and your finances

In a divorce, assets and debts collected during the marriage — a.k.a. common property or community property — are usually divided according to state law.

Some states use community property laws, which divide assets and debts 50/50. Others use equitable distribution, where assets and debts are divided in a way that’s fair, but not always equal.

Either way, property division in a divorce is based on:

  • each spouse’s earning potential;
  • length of marriage; and
  • standard of living during the marriage.

In an annulment, it’s a little more complicated. Since the marriage is considered to never have existed, courts aim to return each party to the same financial state they were in before the marriage. This can mean unwinding property transactions in an attempt to separate community property or commingled funds.

The court can offer alimony in annulment cases if it would be unfair to leave one person in a much worse financial state than the other.

Divorce vs. annulment and your children

Both parents are legally responsible for children born or adopted during a marriage. This is true whether a marriage is annulled or ends in divorce. In either process, custody, visitation, legal decision making and child support matters will need to be addressed.

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Custody

Parents need to decide who will have physical custody and legal custody.

  • Physical custody: where the children live; and
  • Legal custody: who makes decisions about the children’s welfare.

If parents can’t reach a custody agreement, the court will make the decision. Family courts look at several factors, including:

  • the children’s ages and relationship with each parent;
  • each parent’s ability to care for the children; and
  • the children’s adjustment to their home, school, and community.

In court, a judge has full decision-making power, and their goal is to ensure the children’s rights are protected.

In mediation, the mediator guides discussions so that the parents stay in control of all decisions regarding custody. Mediation prioritizes the best interests of the children.

Child support

When decided in court, child support may be given to the children’s primary caretaker. The amount is based on:

  • each parent’s income;
  • the number of children;
  • the needs of the children; and
  • the custody arrangement.

Parents who don’t want to leave everything to a judge can take control of their terms through mediation.

Parents know their children’s needs better than anyone. Mediation lets co-parents set the terms of their agreements, not a judge. With an expert mediator guiding the discussion, parents can choose the custody arrangements and child support amounts that make sense for their family.

At The Aurit Center, we can help you create a comprehensive Parenting Plan that addresses all issues. This type of plan sets you up for a successful and healthy co-parenting relationship. You can create a custom agreement that works for you, not a one-size-fits-all court decision.

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Divorce vs. annulment and the outcome

Both divorce and annulment can end a marriage, but ultimately they’re just legal terms. Your quality of life post-marriage doesn’t hinge on whether your case file says “annulment” or “divorce”. Neither one is always better or guaranteed to achieve a specific result.

What matters more than whether you complete the divorce or annulment process is the path you take to get there. How you end your marriage sets the tone for your next chapter in life — especially if you have children.

Battling in court pits spouses against each other. You can avoid the “you-vs.-them” court mentality and embrace a more positive mindset. This will establish a good foundation for healthy co-parenting moving forward.

There is a better way: divorce mediation.

There are many benefits to completing your divorce or annulment in a more peaceful way:

  • Emotional closure: You can more easily move toward a bright future.
  • Personal growth: You can reflect, learn, and grow from your experience.
  • Independence: You can navigate life by making your own decisions.
  • Better well-being: Leaving a toxic or unhappy marriage can have mental and physical health benefits.
  • Empowerment: You can get a strong sense of empowerment, resilience, and self-confidence.
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How mediation can help

Mediation helps spouses work together. Advantages of the mediation process include:

  • Control over the outcome: You stay in control of everything, from sharing time with your children to deciding how you will divide your property.
  • Confidentiality: Discussions are private, leading to open and honest communication.
  • Less conflict: The mediator helps you and your spouse solve problems, find creative solutions, and reach agreements that meet both of your needs.
  • Respect: Mediation helps you and your spouse express your needs and concerns in a safe, kind, and supportive way.
  • Co-parenting: Many co-parents have said that the co-parenting arrangements they make in mediation result in better parenting because they are focused on the children’s needs. The sooner you can see each other as co-parents and not ex-spouses, the quicker you can get used to your new roles.
  • Better communication: The mediation process can improve your communication skills in all areas of your life.
  • Support from a third-party mediator: The mediator guides a deep and productive discussion without taking sides.

Consider using mediation for a healthier divorce or annulment

Mediation keeps conflict low and has positive results for both spouses and children. A mediator can offer a healthy path forward, reducing stress and creating a better post-divorce relationship.

A healthy divorce begins here. Schedule a free initial online consultation with an Aurit Center Certified Mediator to learn more about how mediation works and how it compares to court, know what to expect, and have all your questions answered.

FAQ’s

How do I get an annulment?

To get an annulment, you’ll need to consult with an attorney. They’ll prepare your annulment petition or complaint and any other paperwork you need.

Then the petition is filed with the court and annulment papers are served to your spouse.

How much does it cost to get an annulment?

The cost of an annulment varies depending on the case, but it can range from a few hundred to tens of thousands of dollars. The total cost depends on:

• where you live and court fees in your area;

• how much time your attorney spends on your case; and

• your attorney’s hourly rate.

Since an annulment can take a lot of time, spouses who reach agreements in mediation before going to court can save a lot of time and money.

Do I need to appear in court to get an annulment?

Yes, in most states, you do have to appear in court to get an annulment.

The petitioner (the person seeking the annulment) usually must attend a court hearing. A judge has to listen to the case details to decide if an annulment will be allowed.

Filing fees are also usually needed when submitting the annulment petition to the court. These fees vary based on the area you’re in and the case.

You may not need to go to court if your spouse agrees to an annulment, depending on the rules in your state. You can check with your county clerk to see if your state requires a hearing.

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