Family law is often more complicated than people imagine. But when it comes to the topic of annulments, people seem even more confused about annulments than other types of family law proceedings.
People often believe the standards relating to religious forms of annulments apply to Arizona’s civil marriages. But they don’t. A different set of rules applies. Many think eligibility for an annulment is based on the length of a marriage. But the duration of a marriage has nothing to do with eligibility for an annulment. And people insist that an annulment is a faster proceeding than a divorce. That’s not true, either.
So let’s go over key facts about what an annulment really is and isn’t.
When an Annulment is an Option
If you get a divorce, the court decrees that a marriage has ended on the date, and the spouses are no longer legally bound to each other. By contrast, if you get an annulment, the court decrees you were never legally married in the first place.
Think of it this way: There are valid marriages, void marriages, and voidable marriages.
Under the law, annulment is not an option if a couple gets a valid marriage. If they want to end their marriage, they must get a divorce. (Also, note that those who get a covenant marriage are not eligible for an annulment.)
However, in some circumstances, marriages are void. In these situations, even if the couple decides to get married—and ignores those prohibitions—their marriage is still void. Couples with a void marriage are entitled to an annulment.
There are still other situations where the marriage isn’t automatically void, but it is “voidable,” meaning that at least one spouse has the right to get the marriage nullified. They just haven’t yet gone to court to seek the annulment.
Void Marriages
Arizona state law specifies that certain marriages are void.
Incestuous marriages are void. Arizona defines incestuous marriage as a marriage between a parent and child; a grandparent and grandchildren; between a brother and sister (including half-siblings); an uncle and niece or aunt and nephew. Marriages between first cousins are also void unless they are older than 65-years old. If they are younger than 65, they can ask the court to approve their marriage if they provide evidence that at least one of them cannot have children.
Voidable Marriages
Broadly speaking, voidable marriages fall into three categories: where the marriage is illegal in the first place; where a spouse lacks the capacity to marry; and where the marriage is the result of deception.
The specific grounds for annulment are:
- Absence of valid marriage license
- Bigamy (i.e., a spouse has an undissolved prior marriage)
- Absence of mental or physical capacity (at the time of the ceremony)
- Duress (i.e., they agree to marriage because of a threat)
- Intoxication (i.e., drugs or alcohol)
- Refusal of intercourse
- Under the age of 18 and without a parent’s consent for marriage
- Concealment of prior marital status
- Concealment or misrepresentation of criminal record
- Misrepresentation as to religion
- Secret plan not to abide by antenuptial (a.k.a. prenuptial) agreement
- Lack of contractual intent (e.g., believed it wasn’t a real ceremony)
- Proxy marriage
- Marriage for immigration status (i.e., to gain a green card)
- Fraud
Again, duration isn’t a reason to get annulled. (But most reasons for an annulment are typically discovered early on in a marriage.)
Keep in mind that some grounds for an annulment are also violations of other laws, so they may result in additional criminal or civil liability. For example, bigamy is a crime under state law, and entering into a sham marriage for a green card is against federal law.
Imagine a couple goes to Las Vegas for the weekend, and—on impulse—they get married. They realize on the flight home that the marriage was a mistake. Can they get an annulment?
No. They have to get a divorce because they have a valid marriage. Realizing it was a mistake is not a reason to get an annulment.
On the other hand, if either one of them were drunk during the ceremony—their intoxication prevented them from meaningfully consenting to the marriage. Or perhaps they did not realize an Elvis impersonator could legally marry them. They thought it was just an act. Either of those situations could entitle them to an annulment.
Procedural Requirements for an Annulment
By law, the procedural and jurisdictional requirements for an annulment are the same as in a divorce.
At least one spouse must have lived in Arizona for at least 90 days before being eligible to file for an annulment. A spouse must file a petition with the court, establishing the grounds for an annulment, and they bear the burden of proving the truth of their claims. The other spouse has the opportunity to dispute the petition. If the court is not convinced by the petitioning spouse’s evidence, the court will deny the request for an annulment.
When it comes to the division of property, the court should divide their property so that they restore each spouse to the financial position they had before the marriage.
For those who have been married long enough to acquire property while they were married, courts follow the requirements of community property (i.e., shared ownership) that apply in a divorce. But again, the courts are mindful of the nullification of an annulment. If an annulment is warranted because of one spouse’s fraud, then the court shouldn’t give that spouse property gained due to their fraud.
Similarly, when it comes to child custody (or parenting time, as it is known in Arizona courts), the standard in an annulment is the same as it is in divorce litigation: The decision is based on what is in the best interests of the child.
In other words, getting an annulment is more complicated than sitcoms make it seem.
And if you are considering an annulment, don’t wait. Contact our office (by phone at: 602-548-3400) to discuss your case and determine if an annulment, divorce, or legal separation will be right for you. For a confidential consultation with one of our family law attorneys, call today
Natalie Mathews is a family law and divorce attorney working in Stewart Law Group’s Phoenix office. The firm has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
