Which Should I Choose, Annulment or Divorce?

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If you’re thinking about ending your marriage, you may want to consider seeking an annulment instead of a divorce.  But how are these two methods different?  Why might you choose one over the other?  What are the requirements for annulling a marriage in Utah?  West Valley City divorce attorney Darwin Overson explains everything you need to know to start weighing your options.

What’s the Difference?

In many ways, divorce and annulment are very similar.  Both formally and legally terminate a marriage.  Both begin when the plaintiff spouse files a complaint, which must be answered by the respondent spouse at the risk of a default judgment.  Both involve separating each spouse’s possessions, income, assets, and property.  On the surface, it seems as though there is very little difference between divorce and annulment at all.

However, closer scrutiny reveals some hugely important differences between these two methods of dissolving a marriage.  Annulment is arguably more thorough than divorce, because while divorce simply ends a marriage, annulment goes even further by working retroactively. If you get an annulment, not only will your marriage end — it will be as if it never existed in the first place.  In other words, your marriage is considered “void.”

Perhaps needless to say, this arrangement has some powerful legal implications for the treatment of your property.  Since annulment effectively erases marriage, there can be no marital estate, meaning property is not divided between spouses as it would be in a traditional divorce.  Instead, the court handling the annulment will attempt to determine which property originally belonged to which spouse, with the goal of returning property to its original owner.

tearing apart wedding rings getting a divorce

Grounds for Getting an Annulment in Utah

Divorce and annulment are alike in another way: in both cases, the plaintiff spouse must identify the “grounds,” or legal reasons, upon which he or she will proceed with the complaint. Utah recognizes the following grounds for annulment:

  • Under Utah Code §30-1-1, all marriages between relatives are considered void.  This usually includes marriages between first cousins, although §30-1-1(2) makes some exceptions if both parties are at least 65 years old, or if both parties are at least 55 years old and either husband or wife is unable to produce children.
  • Under Utah Code §30-1-2, marriages may be annulled (i.e. declared “void”) under the following circumstances:
    • Either spouse has a living husband or wife whom they have not divorced.  This is commonly referred to as bigamy, and is not to be confused with adultery.
    • Either spouse is currently younger than 18 years old, with an exception for marriages between minors with consent by the parents or guardians.
    • Either spouse is currently younger than 16 years old, with an exception for marriage to a 15-year-old with consent by the parents or guardians.

Until the very recent past, §30-1-2(5) also made same-sex marriages void.  However, in October of 2014 the United States Supreme Court made a ruling requiring the state of Utah to legally recognize same-sex marriages.  Because the laws surrounding same-sex marriage in Utah are continually changing and developing, it is highly advisable for same-sex couples seeking a divorce or annulment to consult with an experienced family law attorney for advice regarding possible legal options.

judge with gavel signing legal papers

How Do I Start the Process?

The process for initiating an annulment is similar to the process for initiating a divorce. After consulting with an attorney, the first step is to file a document called a Complaint for Annulment.  This complaint must be filed at your local court, and must also be served on your spouse.  Keep in mind that Utah’s residency rules require that either you or your spouse has lived in Utah for at least 90 days prior to filing for annulment — otherwise, Utah’s courts do not have jurisdiction.

Once the complaint has been filed and served, the court will schedule a hearing on the matter, which may address matters like alimony, child support, child custody, and/or how your property will be divided — whichever are applicable to your marriage.  It can greatly strengthen your case if you are able to provide evidence supporting your claim to an annulment, such as documentation showing your ages or your spouse’s marital history.

Why Get an Annulment Instead of Divorce?

As we discussed a little earlier, annulment and divorce share important similarities — and sharp distinctions.  Why choose one over the other?

Many people who elect to annul their marriage choose to do so for religious reasons.  If divorce clashes with your religious beliefs, but you cannot continue on in your current relationship, getting an annulment may be the ideal solution.  Children of parents who go on to annul their marriages are considered legitimate, and maintain the legal right to child support and inheritance.

Annulment and divorce are major legal decisions which can have long-term effects on your finances, your property, and your children.  Don’t act without consulting an experienced attorney first.  To schedule a free and completely confidential legal consultation, call Utah family law lawyer Darwin Overson at (801) 758-2287 today.

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