What is the Difference Between Annulment and Divorce?

Marriage has remained a fundamental American tradition: unfortunately, so has divorce, and, whether you live in a small city such as Sugar Land, Texas, or a large metropolitan area like Houston, Texas, any divorce lawyer worth their salt will tell you there are just two legal options for ending a marriage.

Of those options, divorce is the most common. While the rate of failed marriages is lower now than a decade ago, nearly 800,000 divorces were filed in 2017, the most recent year for which data is fully available. Still, that figure doesn’t include annulments which differs in significant ways from divorce. It’s important to understand those differences, their ramifications, and any common traits when deciding how to proceed when your marriage becomes untenable.

In a divorce case, the court recognizes that a valid marriage existed, which is now over. On the other hand, for a couple to be eligible to file for an annulment, the court will need to recognize that the marriage was never legally valid.

An annulment may sound like an appealing option. However, it is important to understand whether you are eligible and what the differences are between the two.

At Skillern Firm Divorce & Child Custody Lawyers, we are committed to taking the time to inform our clients so that they can make decisions from a place of clarity. We will answer all your questions and advise you based on your individual circumstances.

Remember, the outcome of issues related to a divorce will have a big impact on your future. It is important to have support from an experienced family law attorney who can guide you through the process while protecting your rights and interests.

Skillern Firm Divorce & Child Custody Lawyers has offices in Houston and Sugar Land and supports people throughout the Greater Houston area. We provide comprehensive family law services, including mediation and litigation. Whatever the circumstances of your case, we are here to help.

Call us to schedule a consultation with an experienced family law attorney at (713) 229-8855.

What Are the Characteristics of Annulment or Divorce?

1. ANNULMENT

Annulment is the most difficult option to obtain. It treats a marriage as though it had never existed. While annulment is attractive to petitioners whose faith forbids divorce, its true purpose is to provide full relief for spouses who can prove they were either deceived or coerced into their union.

2. DIVORCE

Divorce is the permanent dissolution of a marriage between two living spouses, dividing jointly-owned assets, and allowing both parties to pursue independent lives, either through a “fault-based” or “no-fault” process.

Although annulment, which eradicates any history of a marriage, and legal separation, which leaves open the possibility of reconciliation, are polar opposites with divorce somewhere in the middle, the former’s finality and the latter’s lingering hope illustrate the range of emotions in a failing marriage. Understanding the depth of your feelings can help you determine which of the three methods is best suited to your circumstances.

Types of Annulments and Valid Reasons for Pursuing One

A marriage annulment is a legal declaration that a marriage is invalid based on certain grounds that have existed since the beginning of the marriage. If a Judge grants a couple an annulment, it means that the marriage was never legally valid, and legally speaking, it will be as if it never happened.

It is important to note that if there is a death at a time when a marriage could have been annulled, then the annulment will not be granted. This helps avoid issues involving probate and estates.

There are two types of annulments: civil and religious.

Civil Annulments

A civil annulled marriage ends your marriage when granted by the Judge. Either spouse can seek an annulment by filing a petition with the court that states the grounds for annulment. The possible grounds for voidable marriages are laid out in Chapter 6 of the Texas Family Code; they are:

Underage Marriage

If one spouse was over the age of 16 but under 18 when they were married, and the marriage occurred without parental consent or court order, then the court could grant an annulment. However, once the person in question turns 18, an annulment will no longer be possible.

A petition for annulment for an underage spouse can be filed by a parent, guardian, or ‘next friend’ acting on their behalf. However, if a friend wishes to file the petition, they must do it within the first 90 days of the marriage.

Impotency

If one spouse discovers that they are impotent soon after starting their marriage, then an annulment could be granted on these grounds.

In order for an annulment to be granted on the legal grounds of impotence, they must have been permanently impotent at the time of the marriage, and the other party must have been unaware. In addition, the petitioner must not have voluntarily lived with their spouse since making the discovery.

Fraud, Duress, or Force

A common reason for void marriages is that one party discovers that the other spouse is not who they claimed to be when the marriage began. Or, one party felt pressured or forced into marriage before they were ready.

A court can grant an annulment on the grounds of fraud, duress, or force, but the petitioner must have strong evidence to support their case. They must also show that they have not voluntarily lived with their spouse since being released from duress or learning of the fraud.

Discretionary Annulment

A Judge can grant an annulment without anyone filing a petition if one of the parties is underage. The Judge will consider the circumstances of the marriage and the welfare of both parties when making their decision.

Mental Incapacity

If one party was mentally incapacitated at the time of the marriage, then their guardian, parent, or ‘next friend’ can file a petition to annul the marriage.

The annulment will be granted if the petitioner can show that one party did not have the mental capacity to consent to the marriage and they have not voluntarily lived with their spouse when they had the mental capacity to recognize the marriage relationship.

The petitioner must have also been unaware of the mental disease or defect at the time of the marriage and has not voluntarily lived with the other party since they discovered the mental incapacity.

Under the Influence

If one party was under the influence of alcohol or drugs when they married, then the Judge can grant an annulment. The petitioner must prove that they did not have the capacity to consent to the marriage because they were under the influence and that they have not voluntarily lived with their spouse since they were sober.

Concealed Divorce

If one party violated the legal requirements for re-marriage after a divorce in Texas, then the Judge can grant an annulment. For example, in Texas, once someone has been granted a divorce, they must wait 30 days until they can remarry; if they remarry before, then their new marriage could be void.

For an annulment to be granted on the grounds of a canceled divorce, the other party must have been unaware of the marriage and, since making the discovery, should not have voluntarily lived with their spouse. There is also a time limit of one year to seek an annulment on these grounds.

Marriage Less Than 72 Hours After Issuance of License

In Texas, a marriage cannot take place until 72 hours have passed since the issuance of the marriage license. The waiting period is in place to prevent parties from being pressured into marriage.

If spouses do not wait the full amount of time, then the court could void the marriage. However, the marriage must be annulled within the first 30 days for these grounds to be valid.

Religious Annulments

A religious annulment is not granted by a Judge but rather by a church or religious tribunal. A religious annulment does not legally end a marriage, and securing a religious annulment does not guarantee that a Judge will also approve a civil annulment. Similarly, a church may decide not to recognize a civil annulment.

How Does Faith Factor Into an Annulment?

Many churches frown on the dissolution of marriage in any form. While they cannot prevent parishioners from obtaining an annulment or divorce, they can refuse to remarry either party in the church. If you hope to remarry and have a church ceremony, it’s advisable to separately seek a religious annulment from the church while going through the legal process.

What is the Difference Between Annulment and Divorce?

A divorce is a legal dissolution of a marriage. Unlike an annulment, divorce does not mean that your marriage was invalid, only that it has now ended.

In addition, a no-fault divorce also requires a low burden of proof, whereas the grounds for annulment must have strong evidence. Texas is a no-fault state which means most divorces do not require proof of why the marriage has ended. In a no-fault divorce, spouses simply separate in terms of insupportability.

However, some people do choose to file for an at-fault divorce in Texas based on grounds such as abuse, adultery, and substance misuse. An at-fault divorce also needs to be supported with evidence.

However, the biggest consideration for most people is that divorce allows for property division and spousal support, whilst an annulment does not.

Property Division

If you get a divorce, then your marriage is recognized as legal, which means that a Judge will need to divide your marital assets. On the other hand, as an annulment does not recognize marriage as legal, there are no marital assets to divide. Even if you purchased property together, an annulment provides no legal avenue to divide it.

Texas is a community property state, which means that all assets and debts that either party acquired while they were married is subject to equitable decision.

It is difficult to secure an annulment if both parties do not agree to it. If one spouse has a lot of assets and the other does not, then they could push for a divorce in order to secure a proportion of their spouse’s property.

Spousal Support

An annulment invalidates the marriage, which means that neither spouse has a right to seek spousal support. Spousal support is awarded in divorces where one spouse would struggle to meet their basic needs without the support of their ex-spouse after marriage. If you believe that you have a right to spousal support, then divorce could be a better option for you.

Similarities Between Divorce and Annulment

Divorces and annulments both legally end the marriage, meaning you will be once again single and free to remarry.

The spouse seeking annulment must provide evidence to the Judge to support their claims, the burden of proof is similar to an at-fault divorce.

Is it Cheaper to Get an Annulment, Rather than a Divorce?

An annulment is usually cheaper than a divorce proceeding. However, this is not sufficient reason to push for an annulment. Annulments are difficult to secure, and if you try and push for one and then need to continue with a divorce, you could end up wasting a lot of time and money.

The best thing you can do is seek the help of a family law attorney who can advise you on whether you have valid grounds for an annulment.

Can Same-Sex Couples Get a Legal Annulment?

In 2015, the United States Supreme Court legalized same-sex marriage throughout the country, known as the Obergefell decision. As a result, all states must grant both divorces and annulments to same-sex couples in the same way they would for opposite-sex couples.

Is it Difficult to Get an Annulment in Texas?

In Texas, it is difficult to secure an annulment. Texas views marriage as a fundamental constitutional right, and the courts uphold the sanctity of marriage. Therefore, declaring that a marriage is void is fundamentally wrong in the majority of cases.

If you lived with your spouse for a period of time or consummated the marriage, then it will be especially difficult to secure an annulment. If you held yourself publicly as being a married couple, then it usually equates to a legal marriage.

Are Legal Separations Recognized in Sugar Land, Texas?

Texas law does not provide for legal separations. However, there are three alternative avenues for living apart whether or not you file for divorce.

1. Temporary Arrangements While Filing for Divorce

The court does not object when couples take up separate residences or reach temporary accords regarding the distribution of assets and spousal support during divorce proceedings. In fact, such agreements can be incorporated into the final divorce settlement if a judge determines they reach the legal definition of fairness known as “just and right.”

2. Suit Affecting The Parent-Child Relationship (SAPCR)

Again, while the State of Texas does not recognize legal separation, it does not forbid informal partings. Couples may live apart with the understanding that they are still married, meaning they cannot legally enter into other romantic relationships or claim individual ownership of community property. However, separated parents can seek a court-approved child custody and visitation arrangement known as a “suit affecting the parent/child relationship.”

If you and a significant other separate and have children, then you do not need to wait for a divorce to determine child custody and visitation. In fact, a Suit Affecting The Parent-Child Relationship (SAPCR) can also be used for parents who never married and decided to separate.

Most parents can file a SAPCR so long as their child has lived in Texas for at least six months or since birth. They may also file in Texas as it is considered their home, and they have not lived outside of the state for longer than six months.

A SAPCR allows parents to have legally binding child custody agreements without divorce.

3. Partition and Exchange Agreements

While still married, spouses can draft “partition and exchange” agreements. Similar to prenuptials, these contracts assign ownership of designated assets to specific spouses. Those assets are no longer considered community property, nor subject to divorce proceedings.

However, spouses should understand that the partition and exchange remain in place for the duration of the marriage unless further action is taken. If couples reconcile without terminating the agreement, any partitioned assets will go to the deceased’s heirs rather than the surviving spouse.

4. Protective Orders

If you have suffered violence at the hands of your spouse, or you are worried about your safety or the safety of your children, then you or your attorney can file a protective order. A protective order could be used to keep your spouse away from you and your children.

A protective order can also establish who gets to live in the marital residence.

Typically protective orders expire after two years or once a divorce has been finalized. Having time and space away from an abusive spouse could help you make important decisions from a place of clarity.

Divorce and Family Law Done Right in Sugar Land, Houston, and Surrounding Areas

When you marry someone, your lives become deeply intertwined, which makes separating incredibly difficult. Not only is it highly emotional, but it also involves complex issues such as those involving your children and assets.

Regardless of how you end your marriage, it is important that you have support and guidance from a family law attorney. They will ensure that you know your rights and that you can make decisions from a place of clarity.

At Skillern Firm Divorce & Child Custody Lawyers, we are committed to offering personalized representation to our clients. We will take the time to understand your situation so that we can explain your legal rights and work to protect what’s important to you.

We will help you mediate your differences with your spouse. Mediation saves time and money on court involvement and helps protect important family dynamics. Where amicable agreements are not possible, we will also be prepared to fight on your behalf in front of a Judge.

Our goal is for you to transition to a new way of life, feeling confident about your future, whatever it takes.

Speak to an experienced family law attorney today by calling Skillern Firm Divorce & Child Custody Lawyers at (713) 229-8855.