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Annulment or divorce? What is the difference?

Where Strategy Meets Skill

Many people often wonder what the difference is between an annulment and a divorce, and whether or not it is to their benefit to choose one cause of action over the other. In Florida, the petitioner has no discretion with regard to which petition he or she files; rather, the situation will dictate for them which relief is appropriate. 99% of the time, it is going to be a straight up divorce.

A valid marriage can only be terminated by a final judgment of dissolution; however, a marriage that is void or voidable can be annulled.
Burger v. Burger, 166 So. 2d 433 (Fla. 1964). An annulment makes the finding that a valid marriage never existed, whereas a dissolution of marriage action recognizes that a valid marriage existed and needs to be legally dissolved in order to make the parties single again. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932).

In the state of Florida, a legal annulment may be based upon a lack of ability to consent to the marriage (i.e. one of the spouses lacks the mental capacity to enter a contract), bigamy by one of the spouses, or an incestuous marriage as described in Florida Statutes § 741.21. Traditional “religious” criteria for annulment – such as failure to consummate the marriage, failure to produce a child, or broken promises to agree to have children – do not suffice. If none of the unique legal criteria outlined in Florida law applies, then you are NOT eligible for an annulment.

Of these options, the most common seems to be inadvertent bigamy – for example, “I married my spouse before he was legally divorced.” If this applies to you, then you will need to show a copy of the final judgment of dissolution for the prior marriage that post-dates the date of the subsequent marriage.

The second most common complaint in Florida seems to be “lack of consent,” most often employed where there is a wealthy somewhat batty much older spouse who suddenly and inexplicably marries a much younger person. The challenge is typically collateral (i.e. raised by a third party), and is most commonly brought to the Court’s attention by a legal guardian or child of the older spouse. Even in Florida, however, this cause of action is rare.

Over six years of working for the family law judiciary I saw roughly 6-8 cases for annulment, only 2 of which were granted. The remainder were dismissed and told to re-file as a divorce. In the event you DO have a qualifying event for annulment, the Court will require proof. If the Court finds that the facts are sufficiently proven by evidence, then the effect is that the marriage will be considered “void” and will be disregarded or treated as nonexistent by the court. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932); Beidler v. Beidler, 43 So. 2d 329 (Fla. 1949).

This, in turn, means that there will be no marital entitlement to property rights or alimony. Child support and time-sharing may still be at issue, but they will proceed as if the parties were unmarried. Interestingly, though, Florida law does provide the caveat that a child inadvertently made illegitimate by his or her parents’ annulled marriage will not legally be declared illegitimate. See, for example, In re: Ruff’s Estate, 32 So.2d 840 (Fla. 1947).

Most cases will never qualify for annulment. For this reason, you should ask a legal professional in your state if your case meets the legal criteria. Presuming it does not, you can assume that you will proceed on to garden variety dissolution of marriage action.

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