Annulment (Void and Voidable Marriage)

A court judgment declaring that a marriage was never valid, as distinct from a divorce that ends a valid one - the difference between a void and a voidable marriage, the grounds each state recognizes, who may bring the case, and what an annulment does to property, support and children.

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What it means

An annulment is a judgment that a marriage was legally invalid from the start, so that in law the parties were never married. It is not a religious annulment, which is a separate process within a church and has no civil effect, and it is not a divorce, which dissolves a marriage that was valid. The distinction matters because the grounds are different and narrower: divorce in every state is available without fault, while annulment requires proof of a defect that existed at the time of the ceremony. Statutes divide those defects into two classes. A void marriage is invalid without any court action because the law forbids it outright - bigamy, a marriage between close relatives, and in most states a marriage where one party was below the minimum age with no court or parental approval - though a judgment is usually obtained anyway so that records are clear. A voidable marriage is valid until a court annuls it at the request of the party the statute protects, and the grounds include fraud going to the essentials of the marriage, duress, lack of mental capacity or intoxication at the ceremony, a physical incapacity to consummate that was unknown to the other party, and underage marriage where the minor later disaffirms it.

Who may sue, and for how long, follows from the class. A void marriage may be attacked by either party, by a third party with an interest, or after a party's death; a voidable one only by the party the ground protects, only while both are alive, and only within a period the statute fixes that usually runs from discovery of the defect or from reaching majority. Continuing to live together as spouses after learning of the fraud or after the duress has ended generally ratifies a voidable marriage and bars the claim. The fraud ground is narrower than people expect: misrepresentations about wealth, character or affection do not qualify in most states, while concealment of an intent never to have children, of an existing pregnancy by another person, or of a marriage entered solely for immigration status typically does.

Although the marriage is treated as never having existed, the consequences are not simply erased. Children of an annulled marriage are legitimate in every state by statute, and custody and support are decided exactly as in a divorce. Most states also let the court divide property acquired during the marriage and, in some, award support to a party who married in good faith - the "putative spouse" doctrine, which protects a person who reasonably believed the marriage was valid. Rights that depended on marital status, such as a survivor's benefit or a spousal share of an estate, generally end with the annulment, and a prior spousal-support obligation from an earlier divorce that ended on remarriage does not usually revive. Immigration status obtained through the marriage is affected separately under federal law.

Where this comes from

When people hire a lawyer for this

Most people who ask about annulment want a divorce that does not look like one, and a lawyer's first job is usually to say so: if the ground is not there, the case will fail and the time is better spent on the divorce. Annulment is worth pursuing where the marriage was bigamous or prohibited, where a fraud went to the heart of the marriage and was discovered recently, where an earlier support obligation or benefit turned on not remarrying, or where the client married in good faith and needs the putative-spouse protection for property. Because the periods are short and cohabitation after discovery can waive the claim, the advice needs to be sought promptly.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AdoptionThe court order that makes a child legally the son or daughter of someone other than the birth parents - the kinds of adoption, whose consent is required, how the birth parents' rights end, the home study and the hearing, and what the order changes about inheritance, records and the child's name.
• Child SupportMoney one parent pays the other toward a child's living costs, set in most cases by a state formula rather than by negotiation.
• Common-Law MarriageA marriage formed without a license or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognizes one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.
• Dividing Retirement Accounts in Divorce (QDRO)How pensions, 401(k) plans and IRAs are divided at divorce without tax or penalty - what a qualified domestic relations order is and why a divorce decree alone is not enough, the difference between a defined-benefit and a defined-contribution split, the plans that need a different order, and the mistakes that cost a former spouse the share the decree awarded.
• Establishing PaternityThe legal step that makes a man a child's father in law - and signing the hospital form is one of two routes, not a formality.
• Grandparent and Third-Party VisitationWhen a court can order that a child spend time with a grandparent, step-parent or other non-parent over a parent's objection - the constitutional limit set by the Supreme Court, the circumstances in which state statutes allow a petition, the special weight a fit parent's decision receives, and what a petitioner must prove.
• Grounds for DivorceThe legal basis a divorce is granted on - and in every state today at least one basis requires proving no wrongdoing by anyone.
• Guardian ad Litem and Custody EvaluatorThe two neutrals a court most often appoints in a contested custody case - what a guardian ad litem does and does not do, how it differs from a child's attorney and from a custody evaluator, who pays, what they may see, and how their reports are used at trial.
• Guardianship of a MinorA court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.
• Legal and Physical CustodyTwo different things the word "custody" covers: who makes major decisions for a child, and where the child lives.
• Legal SeparationA court status in which spouses live apart with binding orders on support, property and children, while remaining married.
• Marital Property DivisionHow a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.
• Modifying a Custody or Support OrderChanging an existing family court order - which usually requires proving something has changed, and never happens by the parents' agreement alone.
• Parenting Plan and VisitationThe written schedule and decision-making rules for a child after separation - and the document courts increasingly require rather than invite.
• Prenuptial AgreementA contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
• Protective Order (Restraining Order)A court order telling one person to stop contacting or coming near another - enforceable by police, and valid across state lines.
• Relocating With a ChildMoving a child away from the other parent - the family law dispute most likely to require the court's permission before the move, not after.
• Spousal Support (Alimony)Payments from one former spouse to the other - discretionary in most states, and taxed differently for instruments made after 2018.
• Termination of Parental RightsThe court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

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