Weighing Annulment vs. Divorce

When couples contemplate ending a marriage, rarely does the thought of asking for annulment, instead of divorce, occur to them. While most people have some vague idea of what annulment means, many associate it with a religious procedure intended to erase the marriage. Religious-based annulments certainly exist, but are wholly separate from the civil process that goes under the same name. The key difference between divorce and annulment is that an annulled marriage is treated as if it never existed, and a divorce simply dissolves a legally-valid union. People do opt for a civil annulment for religious reasons, but also seek this alternative to divorce to avoid extending certain benefits that former spouses are entitled to in divorce, such as property distribution. Compared to divorce, annulment is a complicated and more costly procedure that brings no guarantee a court will grant it. That being said, it may be the right choice in certain situations, and understanding how the law and courts treat these kinds of requests will allow individuals considering whether to end their relationship to make an informed decision.

Grounds for Annulment

One important point to understand about annulment is that, unlike divorce, there are no statutes addressing this subject. Thus, all the law on this issue is based on past court decisions, which means judges have wide discretion in deciding annulment cases, and the outcomes are very uncertain. However, looking at past judicial trends, certain claims for annulment are more likely to be accepted than others, including:

• The marriage was a sham or fraudulent. This occurs if one party agrees to marry to gain a certain benefit, such as immigration status, public benefits, health insurance or greed. To claim a marriage is fraudulent requires one spouse to be innocent of the other party’s motives, and usually requires the marriage to fail shortly after its creation.
• There was no consummation. If consummation of the marriage did not occur, courts have accepted this reason to justify annulment, but it must be sought relatively early to have any chance of succeeding. Waiting years to annul a marriage is likely to preclude this option.
• The marriage was illegal from the start. Illegality of a marriage can be based on age, one party being already married, or the incapacity of a spouse at the time of the marriage. In this situation, courts are likely to grant an annulment because the marriage was never valid. The more compelling the evidence, the easier it is to convince a judge the marriage should never have taken place.

Spousal Rights

Marriage confers specific rights on both spouses that make a significant difference in divorce. The rights of a party in a divorce are spelled out in Florida statutory law, but annulment, as mentioned above, has no set laws governing its application. From a practical standpoint, courts can and will divide property in an annulment proceeding since there is likely to be some commingling of property, but the court is not required to use a particular standard to decide which party gets what. Consequently, if possible, it is best for the parties to form an agreement on property division privately so there is more control over the outcome. In addition, Florida law automatically dissolves certain trusts, insurance beneficiary designations, and provisions in wills as an aftereffect of divorce. Annulment typically brings the same type of effect, but an experienced family law attorney should be consulted to ensure the financial aspects of the annulment are handled properly.

Talk to a Florida Family Law Attorney

Making the decision to end your marriage is never easy, but working with a family law/divorce attorney can make the process more manageable. The Tampa Bay law firm All Family Law Group, P.A. understands how overwhelming this transition can be, and will work to keep you informed about the legal process and options.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

The Lesser Known Option to End Marriage: Annulment

When married individuals consider ending their marriage divorce is usually the first and only option they explore. This default starting point makes sense when one thinks about the lack of other viable options discussed and/or known by most people. In addition, many people look to divorce as the easiest available option, and avoid other possibilities for ending a marriage out of a desire to exit the relationship quickly. However, while Florida does not offer couples the option of a legal separation, statutes and law established through court cases do permit couples to annul a marriage in certain situations. A natural question that emerges for most people when this topic comes up is why they should choose this over divorce. Ultimately, the principal advantage of annulment is that it legally treats an annulled marriage as if it never existed. And, there are circumstances where a person would rather have no legal association with a past partner that justifies this more involved step. A recent story on Fox News serves as an example of a spouse that would have reasonable grounds for seeking an annulment. A Zephyr Hills man assumed a fake identity for over 20 years in order to avoid a second divorce. His new wife had no idea her husband was using a false identity until police appeared at their door to arrest him for identity theft, and she is now left to deal with the legal and emotional fallout of his decision.

Void Marriages

As a preliminary point, it is important to note that Florida does not have specific law on annulment. Rather, it has statutes and case law that establish when a marriage may be declared void or voidable. Void marriages are unions that were invalid from the start and can never be legal. Voidable marriages, on the other hand, were not necessarily invalid from the start but potentially could be. All void marriages can be annulled, but only some voidable marriages may be. Some examples of void marriages under Florida law include:

• bigamy – marriage to more than one person at the same time;
• incest – marriage to a blood relative;
• underage couples – 18 is the minimum age to get married unless there is consent from the couple’s parents. Note that an exception can be made if the couple is expecting a child; and
• permanent incompetency – marriage to a person unable to give informed consent to the marriage due to permanent mental incapacity.

Voidable Marriages

Obtaining an annulment for a voidable marriage is a more difficult process because the allowable circumstances are more complex and subjective. Further, the law in this area is exclusively based on past court decisions, which leaves the reach and application of the law open to interpretation. However, the following grounds are historically recognized as sufficient to justify annulling a marriage:

• sham or fraudulent marriages, such as to gain legal immigration status, public benefits, or Social Security. There must be no intent to live together as married couple by one spouse, with the other being entirely innocent;
• lack of consummation, but this claim should be made relatively early in the marriage to have a convincing argument; and
• concealment, such as one spouse hiding the fact that he/she cannot have children.

Consult a Family Law Attorney

Annulment cases are very complex, and typically involve very complicated sets of facts that require an experienced lawyer to effectively present in court. The All Family Law Group, P.A. in Tampa Bay understands the law and resource investment needed to win these cases, and can help you determine if annulment is right for you.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+