What is the difference between a divorce and an annulment? In a nutshell, a divorce is the breakup of a marriage while an annulment is a declaration that no real marriage ever took place. Two types of annulments exist – religious and civil. Although religious annulments are beyond the scope of this article, a civil annulment differs from a divorce in that:
- There is no division of property (each party keeps their individual property).
- There is no alimony (child support obligations remain, however).
Unlike many other states, Florida has no statutory annulment law. The functional equivalent of an annulment can be granted by a court applying law that was created by court precedent, not by the Florida Legislature. Annulments are difficult to obtain and rarely granted in Florida.
Grounds for a Florida Annulment
The typical grounds for a Florida annulment are as follows:
- Incest: Including half-relatives but not including relatives by adoption or marriage; or first cousins and more distant relatives.
- Bigamy or polygamy: Marriage to more than one person at the same time. In the typical situation, someone marries without realizing that a divorce sought in another state was not finalized.
- Youth: One or both of the spouses was underage at the time of the marriage and the parents did not consent to the marriage; or one or both spouses were too young to marry, even with parental consent.
- Permanent mental incompetence: One party to the marriage was unable to give meaningful consent to the marriage because he/she was permanently incapacitated (mentally ill, for example).
- Temporary mental incompetence: One of the spouses was suffering from a temporary mental incapacity (intoxication is the most common example).
- Fraud: One spouse induced the other to marry through fraud. Subsequent failure to keep a promise that was sincerely made does not constitute fraud, however, and only some forms of fraud will support an annulment. For example, the marriage of someone who tricked their spouse into marriage purely for immigration benefits might be considered fraudulent.
- Duress: A “shotgun marriage” can be annulled, for example, but so can a marriage entered into through less direct forms of coercion.
- Impotence: If the other spouse was unaware of the condition prior to the marriage.
- Lack of intent: One or both spouses entered into the marriage as a joke.
You initiate an annulment procedure by filing a petition for annulment with the appropriate Florida circuit court. One spouse can initiate the annulment procedure; both spouses do not have to sign the annulment petition. The petition must allege at least one of the grounds for annulment listed above.
The court will apply Florida’s family law rules of procedure, which are quite formal compared to, say, the rules that apply in small claims court. If the other spouse opposes the annulment – as is often the case when the spouse seeking the annulment is much wealthier than the other spouse – the opposing spouse may counterclaim for divorce.
Burden of Proof and Counterclaim
The burden of proof for an annulment is “clear and convincing evidence.” This is a much heavier burden of proof than the burden of proof borne by a spouse seeking to prove a fact in a divorce proceeding (the value of the family home, for example).
Here’s an example. If one spouse files for an annulment and the other spouse files for divorce. If the spouse seeking an annulment fails to meet the burden of proof for an annulment, a divorce will probably be granted and assets will be divided between the spouses based on Florida’s equitable distribution principle. This division could result in negative financial consequences for the wealthier spouse.
Void vs. Voidable
A void marriage is a marriage that was never valid from the outset, while a voidable marriage is a marriage that can be retroactively declared invalid. Although both void and voidable marriages can be the subject of annulment proceedings, failure to annul a void marriage carries consequences that are not nearly as serious as failure to annul a voidable marriage.
The following grounds for annulment render a marriage void:
- Bigamy or polygamy
- Permanent mental incompetence
- Both spouses are underage and married without parental consent, or both spouses were too young to marry even with parental consent
The following grounds for annulment render the marriage voidable:
- Temporary mental incapacity (intoxication, for example)
- Certain forms of fraud
- One spouse (rather than both spouses) was underage and lacked parental consent or was too young to marry even with parental consent
- One or both spouses married as a joke with no intent to follow through with a conjugal relationship
The distinction between a void marriage and a voidable marriage might seem like a legal technicality, but it can have important legal consequences.
If the marriage is merely voidable, an annulment will still not be approved if the complaining party voluntarily consummated the marriage or cohabitated with the other spouse after the disability has been removed. For example, if the relevant spouse:
- Sobered up (intoxication)
- Became aware of the fraud that rendered the marriage voidable (fraud)
- Became free from force or the threat of force (duress)
- Turned 18 years old or obtained parental consent (underage)
- Became aware of the other spouse’s impotence (impotence)
- Became aware of the joke (joke)
Legal Effect of Annulment
If a marriage is void (due to bigamy, for example), the consequences of marriage can likely be avoided without even obtaining a formal annulment simply by proving the circumstances that render the marriage void. It is almost always better to go ahead and get a formal annulment, however. If a voidable marriage is voided by a formal annulment, it is treated the same as a void marriage.
If a voidable marriage is ratified through consummation or cohabitation, it becomes like any other marriage – it can only be ended by death or divorce. In the event of death, the spouse enjoys inheritance rights under Florida law. And in the event of divorce, both equitable distribution and alimony laws apply.
Get Started Today
If you are seeking an annulment, if your spouse is seeking one against your will, or if you simply need advice on this matter, contact the family law attorneys at Beller & Bustamante either online or by telephone at (904) 288-4414 to schedule a consultation.
We serve clients throughout the Jacksonville area including Northside, Westside, Southside, Arlington, the Jacksonville Beaches, and elsewhere.