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Annulment

OVERVIEW

An annulment is a judgment by the court determining that a purported marriage previously entered into was never valid and that accordingly, the parties are not currently married.  A divorce terminates a valid marriage; an annulment determines that the marriage never existed in the first place.  Annulment actions were more common before the adoption in most states of ‘no-fault’ divorce (see Divorce and Family Law), as often this was the only way to dissolve a marriage in the absence of grounds such as adultery or other marital misconduct. Annulments may still be the only option for couples whose religious principles preclude obtaining a divorce.

GROUNDS

While the remedy of annulment is available in most states, the process and grounds for obtaining one varies depending on state law. This Article will focus on Florida Law. Some marriages are considered to be void ‘ab initio’, i.e., the marriage is not and never could be valid (e.g., a marriage between a brother and sister). Other marriages may be voidable; the marriage can be annulled at a later date (e.g., marriages involving under-age persons).  The period of time within which one is required to file a proceeding to annul a voidable marriage varies from state to state. In order to void a marriage on the grounds that one of the parties was under-age at the time the marriage took place, the action must be filed shortly after the party seeking the annulment reaches the age consent or majority.

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Legal Grounds

The most common grounds for obtaining a judgment or decree of annulment are that (1) either party was under the legal age for marriage at the time the marriage was entered into, (2) that the marriage is incestuous or that the parties are otherwise closely related under state law, and (3) that the marriage is bigamous.

Physical/Mental Grounds

There are also some physical and mental conditions that can prevent a marriage from being valid, depending on state law.  These conditions include impotency, unsound mind, insanity and mental retardation.  Some states permit an annulment if, at the time the marriage took place, a party to the marriage was a drug addict, a habitual criminal or a prostitute and disclosure of these circumstances was not made to the other party.  Since marriage is considered to be a civil contract, non-disclosure or fraud may be the basis for annulling. Some states permit annulment of a marriage if the woman was pregnant with another man’s child when the marriage was entered into.

Coercion or Duress

In some cases, coercion or duress can be a basis for annulment – the so-called “shot-gun wedding” is an example of coercion.

Lack of Mental Capacity

In order to enter into a valid marriage, the parties must have the same general mental capacity as is required to enter into a valid contract- that is, the ability to understand the nature and effect of the act he/she is performing. If, at the time the marriage is entered into, either of the parties lacks the requisite mental capacity due to intoxication, drug use or general mental illness, such incapacity may be the grounds for annulling the marriage.

ACTIONS

A legal proceeding for an annulment is brought in the same way as any other court proceeding, including a divorce. The action is initiated by filing a petition for annulment and having the pleading served on the respondent spouse. The respondent is required to file an answer to the complaint or petition setting forth any defenses to the action.

Who may file the Action?

An action to annul a marriage may be brought by a party to the purported marriage or by an interested person who has a connection to the parties to the marriage. For example, the parents of an underage child or the guardian of an incompetent person can petition the court for an annulment.

Effect of a Judgment of Annulment

An annulment voids a marriage- it is as if the marriage never existed. If, however, there are minor children born of the relationship, parental responsibilities, including care and support will still be imposed. Generally, each party will be responsible for any individual debts incurred during the marriage. The parties will be jointly liable for any joint debts and will have an equal and divisible interest in any joint assets, including real estate.

For a free consultation on all of these issues, contact Hoffman, Larin and Agnetti, PA at (305) 653-5555. Our attorneys have handled more than a thousand family law cases since 1975. We have offices in Dade, Broward and Monroe Counties.