Effect of Annulment

Annulment is a legal proceeding initiated to terminate an invalid marriage and to declare that no valid marriage ever took place because of a problem existing at the time of the wedding ceremony. The basic difference between a divorce and annulment is that divorce dissolves a valid marriage, and annulment proclaims that there never was a valid marriage. Annulments are rare compared to divorces, partly because of the wide availability of no-fault divorce.

The main grounds for obtaining annulments are fraud, physical incapacity, non-age, force or duress, mental incapacity, bigamy, and consanguinity.

Children of Annulled Marriage

Usually, an annulment action involves issues of property distribution together with problems involving maintenance, custody, and child support. Annulment nullifies the marriage, but not the legitimacy of the children born to the marriage. Parents in an annulled marriage have a duty to support their children born before and after annulment. Children born during the annulled marriage are considered legitimate, and they have the same rights as children of divorced parents. During annulment proceedings, when a wife applies for child support and the husband insists that he is not the father of the child, the court has jurisdiction over the paternity question.

Courts usually order post-annulment support due to the public policy that requires courts to protect children’s rights and to take necessary measures to prevent them from becoming public charges. In most states, courts can order temporary child support both while the annulment is pending and after the decree has been entered.

Custody and visitation rules involving children are similar in annulment proceedings and divorce proceedings. The “best interests of the child” rule applies to annulment proceedings. One of the parents usually gets custody, and the other parent usually is awarded visitation rights.

Property Division

Traditionally, annulments are sought very rarely and are not granted if the marriage existed for a long duration. The property rights in annulment proceedings are not similar to marital property rights in divorce proceedings. In annulment proceedings, the parties enjoy the property rights of a person in an individual capacity.

In some states, when a marriage is void from the beginning due to presence of a previous marriage, there cannot be marital property subject to equitable distribution. Courts generally may grant property awards in annulment proceedings, and the putative spouse doctrine applies for purposes of property division. (A putative spouse is a spouse in a putative marriage that is entered in good faith by at least one of the parties, but is invalidated because of some hindrance on the part of one spouse or both spouses.)

At a party’s request, the court generally divides, distributes, and assigns the marital property between the parties without regard to marital misconduct and in such proportions as the court determines after considering all relevant factors. The division of property in annulment proceeding is more like dissolution of a business related to individuals’ property rights and less like divorce proceedings. In most states, courts may not change the division of property made or approved in an annulment decree.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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