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Should I Get an Annulment Instead of a Divorce?

Annulment or DivorceBy: Iman Zekri, Esq.

A common question asked by my clients who are contemplating a divorce after just a few weeks or months of marriage is: “Can I get an annulment?” In addressing this question with my clients, I often confront two widespread misconceptions about annulments. First, many individuals assume that obtaining an annulment is an easy, readily available alternative to divorce. Second, people tend to believe that getting an annulment is advantageous or somehow “better” than getting a divorce.

This article addresses what every Floridian needs to know about obtaining an annulment by explaining what conditions must exist in order to secure an annulment and by discussing the types of relief a party can request from the court in an annulment proceeding.

What is an annulment?

Before grappling with the issue of how to obtain an annulment, one must understand the definition of an annulment. Simply put, an annulment is a court order that invalidates a marriage back to the date of its formation. An annulment declares that the marriage never existed because of a defect in the formation of the marriage.

What is the difference between an annulment and a divorce?

An annulment fundamentally differs from a divorce. Whereas an annulment is a court order declaring a marriage never existed, a divorce decree recognizes that a valid marriage existed and serves to dissolve the marriage. Unlike a divorce, an annulment signifies that the parties were never united in marriage.

How can you get an annulment in Florida?

In Florida, a marriage may be annulled if particular factual circumstances prevented the parties from entering into a valid marriage. The most common grounds for obtaining an annulment are summarized below. One thing is apparent from the list: mere incompatibility resulting in a short-term marriage is insufficient to obtain an annulment in Florida.

  1. Fraud or Concealment. Fraud may serve as a ground for annulling a marriage if the alleged misrepresentation induced the innocent party to enter into the marriage. The fraud must relate to a matter which goes to the essence of the marital relation. For example, if a spouse concealed the fact that he or she is unable to bear children, or if a spouse concealed that he or she suffers from a venereal disease, that misrepresentation may warrant an annulment of the marriage. Importantly, the innocent party should commence an annulment proceeding immediately upon his or her discovery of the fraud because a spouse who has become party to a marriage by fraud may not secure an annulment if the marriage has been consummated.
  2. Duress. A marriage may also be annulled if it was entered into under duress. In order to constitute duress sufficient to annul a marriage, the duress must have been the inducing cause of the marriage, and it must have rendered the subject party incapable of exercising his or her free will.
  3. Mental Incapacity. In order to have a valid marriage, both parties must possess sufficient mental capacity to consent to the union. Accordingly, lack of mental capacity renders a marriage a nullity. Lack of mental capacity may be permanent or temporary. Notably, temporary intoxication must be of such a degree that it renders the party deprived of reason. Absent a showing of ratification of the marriage upon regaining mental competency, the marriage may be annulled.
  4. Marriage Under the Age of Consent. Under Florida law, a marriage license cannot be issued to any person under the age of 18, unless the party is 17 years old, provides the written consent of his or her parents, and the older spouse is not more than two years older than the younger spouse. As such, if a party to a marriage was under the legal age of consent, the marriage may be subject to a claim for annulment.
  5. Bigamy or an Undissolved Prior Marriage. Another ground for an annulment arises when one of the parties was legally married to another individual at the time of the purported marriage. A party may obtain an annulment in such an instance on the basis of the prior existing marriage. Because a bigamous marriage is deemed to be absolutely void and is a nullity under the law, a judicial decree of annulment is not required; however, it is often the recommended practice to have a court formally declare the nullity of the marriage.
  6. Incestuous Marriages. In Florida, a person may not marry someone that he or she is related to by lineal consanguinity (i.e., a sister, brother, aunt, uncle, niece, or nephew). Accordingly, if spouses are blood relatives and direct descendants or ascendants of each other, their marriage may be annulled.

What relief can a party obtain in an annulment proceeding?

Because an annulment declares that the marriage never existed, courts generally attempt to restore the parties to the financial position they were in before the purported marriage. Under Florida law, courts have the authority to award temporary support and other forms of financial relief as part of their equitable jurisdiction. Moreover, a court may also decide parental responsibility for minor children and make provisions for their support in an annulment proceeding.

Key takeaways

Obtaining an annulment in Florida is a difficult endeavor because there are limited circumstances that allow a party to secure an annulment. Because of the complexity and rarity of having a marriage annulled, parties may find that obtaining a divorce is simpler and less expensive than seeking to annul their marriage.

If you are considering filing for an annulment, you should consult with a family law attorney about whether pursuing an annulment is right for you. I may be reached at iman.zekri@henlaw.com or by phone at 239-344-1119.

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