Understanding the difference between a divorce and an annulment is important if you are considering separating from your spouse. To divorce legally your marriage must be valid. A divorce will handle all divorce related issues decided by the court such as the division of community property, child custody and support, and other financial issues.
On the other hand, an annulment is a declaration that the marriage was never valid in the first place. It will void out the marriage, treating it like it never existed. Many people are under the impression that if you have been married less than a year you can annul your marriage. However, the length of your marriage is not a ground to annul the marriage and there are certain grounds for asking the court to grant your annulment that must exist.
To file for an annulment you must be eligible for one, which are any marriages that are considered void or voidable. Void marriages are illegal marriages, to begin with, and were never recognized by the state of Texas. Examples of void marriages can include marriage between close family members. In Texas, it is illegal to be married to a close relative. Examples of close relative relationships include brother and sister, aunt and nephew, uncle and niece, and ancestor and descendant. In a brother and sister relationship, this can apply to relationships where brother and sister are related by whole blood, half blood, and even adoption.
Annulments for marriages between parties where one spouse is between the age of 16-17 may be eligible if the minor did not receive parental consent before the marriage. Any party to a marriage where one spouse is under the age of 16 is void and will not need an annulment since the marriage was not valid or recognized in the first place in the state of Texas. A parent or legal guardian can file for the annulment, but it must be done before the minor party turns 18.
One might also be eligible for an annulment if your marriage took place within 30 days of a spouse’s previous divorce. You must prove that your spouse concealed the divorce and that you had no knowledge about the spouse’s previous marriage or divorce. It is a requirement that the divorce has occurred within 30 days before the current marriage. Also, an annulment action must be brought before the first anniversary of your marriage, and you must show that you have not lived with your spouse since finding out about the prior marriage or divorce. Likewise, if you marry someone who is already married to a third party you can file to annul your marriage.
Lastly, your marriage will a voidable marriage if you got married within 72 hours after obtaining your marriage license. If you are filing for an annulment, it must be done within 30 days after your marriage.
Voidable marriages are those that are legal but is a marriage that either one or both spouses have entered under conditions that the spouse wouldn’t have reasonably agreed to. Voidable marriages are still recognized by the state of Texas until the marriage is annulled where it is no longer valid. Some examples of voidable marriage include marriage under intoxication, deception, or compulsion.
If a spouse has used force, duress, or fraud to induce the marriage you are eligible for an annulment. You should not live with your spouse once you become aware of the fraud or after the force or duress has ended.
If one spouse is not mentally competent to enter a marriage this is another ground for annulment. There are many examples of people marrying under the influence of alcohol or drugs making them lack the ability to consent to a marriage. You must prove that you were mentally incapacitated at the time of the marriage and that you have not lived with your spouse when you gained the ability to recognize and consent to the marriage. If you are requesting an annulment based on your spouse’s mental incapacity, you will need to prove that you were unaware of the mental incapacity at the time of the marriage.
Other grounds for a voidable marriage are impotence, such as erectile dysfunction. If either spouse concealed the fact, they were impotent at the time of marriage, the other spouse must present evidence to prove they hid so to be granted an annulment. It is almost on the spouse seeking the annulment to prove they were unaware of their spouse’s impotence at the time of marriage, and that you have not lived with your spouse since becoming aware of the impotency.
Like a divorce, a state must have jurisdiction over the annulment, and you can file for an annulment in the state of Texas if one or both spouses are domiciled in the state, or they were married in the state. In Texas, divorces are subject to divorce venue statute that declare what courts and where a divorce may be heard. However, those statutes do not apply to annulments, but you will most likely be limited to a court where a divorce case can be decided. You are also available to file your annulment in the county in Texas, but most people will file in a county that is most convenient for them to travel to.
If there are children involved in the annulment, a separate action called a Suit Affecting the Parent-Child Relationship (SAPCR) will need to be filed in addition to the annulment. Through the SAPCR proceeding, all issues concerning the children will be decided. Also, an annulment doesn’t give an option for spousal maintenance, since it treats the marriage as if it never existed, and does not deal in the division of property, assets, and debts. All property and debts will generally go back to the party who owned them before the marriage.
In a divorce, there is a 60-day required waiting period for your divorce to be finalized, but in an annulment, there is no required waiting period. However, you will have to factor in that it won’t be able to be done right away because it will need to be scheduled in a court to go before the judge. Depending on the court’s schedule this could take anywhere from weeks to months. In an annulment
Knowing the statutory grounds for an annulment will give you some insight on if your marriage is eligible for an annulment. It is also important to know just what will be covered within the divorce proceeding since anything about children will be a separate cause of action. Lastly, if you do not qualify for an annulment under one of these grounds you will still be able to file for a regular divorce or attempt to declare your marriage void.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.