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Annulment vs. Divorce

Posted on : April 12, 2010

I’m often asked what the difference is between a divorce and an annulment.  A divorce dissolves the marriage between the Husband and the Wife.  An annulment is to judicially declare that a valid marriage never took place.  For an annulment to take place, the marriage has to either be void or voidable.

There’s no specific Florida Statute regarding annulment and an annulment is granted only in rare circumstances.  An annulment is an appropriate method of terminating a marriage when one of the parties lacked the capacity to enter into a legal contract (the marriage itself) because of the lack of mental capacity, extreme intoxication or because of a prior existing marriage.  The most common reason for an annulment is when a marriage is void because one of the parties is already married to someone else, even if that marriage took place out of state or in another country.  The law in Florida is that a marriage is not valid, and thus void, if one of the parties has a legal spouse at the time of the marriage.  It’s important to note that Florida law permits a third party, including a family member or the prior spouse to the first marriage in this example, to challenge the validity of a marriage.

A marriage is voidable and therefore has the possibility of being annulled based on fraud or duress.  In one instance, a party lied both to her fiance and on the marriage application as to how many times she had been married and why those marriages had ended.  Subsequent to the marriage, her husband testified that he would not have married her had he known how many times she had been married.  However, the appellate court determined that their marriage could not be annulled because it had been consummated (meaning completed by sexual intercourse).  It is established by law in Florida that one who has become a party to a wedding ceremony by fraud committed by the other person may be awarded an annulment if the marriage has not been completed by sexual intercourse.  Consummation of a marriage is an important factor for the court to consider in determining whether an annulment can be granted and appears to operate as a ratification of a marriage that is otherwise voidable.  It is important to keep in mind that if at the time of the ceremony the fraudulent conduct is known to the other party, then that marriage cannot be annulled.

Another example of a marriage that may be annulled based on fraud is when the parties marry and plan to start a family.  Both parties specify and discuss before the marriage that they want to have children.  Subsequent to the marriage, one of the parties finds out that the other party had himself/herself sterilized a year prior to the marriage.  In this case, there is an extremely good chance that the marriage could be annulled based on fraud.

Although fraud is a basis for an annulment, Florida courts have held that misrepresentation as to a pregnancy is not sufficient to be awarded an annulment.

If an annulment is granted, the court has the same ability to divide assets, award alimony, custody (now called time-sharing in Florida) and child support as if the case were a divorce.

I meet with many people who would like to have their marriage annulled, but it’s important to realize that there’s no established law or procedure for an annulment in Florida and it is very difficult to satisfy the requirement to obtain an annulment.  A divorce, however, definitely will be granted and terminate the marriage based upon the request of only one of the parties to a marriage.  To find out if you qualify for an annulment and to speak to a Tampa divorce attorney, please feel free to contact my office in Tampa, Florida and schedule an appointment.

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