Which Should I Choose, Annulment or Divorce?

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? Salt Lake City divorce attorney Darwin Overson of Overson & Bugden explains everything you need to know to start weighing your options.

What’s the Difference Between Annulment and Divorce in Utah?

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. 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 divorceGrounds 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. However, in a divorce, the plaintiff spouse has the option of filing for a no-fault divorce, meaning they do not have to prove the defendant spouse is the cause for the breakdown of the marriage. A no-fault divorce is often one in which the plaintiff spouse claims irreconcilable differences. To get an annulment, you must prove your marriage meets specific criteria.

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. However, marriages between close relatives, like siblings, are always void.
  • 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. Bigamy may be unintentional and occur when a new marriage begins before one of the parties’ previous marriage is legally over.
  • 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 and the courts.
  • If the marriage is entered under fraud or misrepresentation, it may be annulled. However, the misrepresentation must be so significant that you would not have agreed to marry the other person had you known the truth.

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. In 2015, the Supreme Court of the United States declared in Obergefell v. Hodges that laws voiding same-sex marriage were invalid. 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 Utah family law attorney for advice regarding possible legal options.

judge with gavel signing legal papers

Proving Grounds for an Annulment in Utah

Proving that your marriage is eligible for an annulment is easier said than done. In some cases, people do not realize their marriage is not legal until years after the wedding. In other cases, one spouse may go to lengths to hide evidence from the other spouse. In any case, proper documentation is a great way to prove your grounds for an annulment.

If you want an annulment because you were underage at the time of the marriage and feel like you were coerced into it, you can provide a copy of your birth certificate or something else that proves your age. However, getting documentation about your spouse could be more difficult if they are not cooperative.

For example, your spouse could hide their birth certificate from you, so you cannot prove their age. Also, if your spouse lied to you in order to trick you into the marriage, there might be no hard proof or documentation of the lie. If this sounds like your situation, you should consult with our Utah divorce and annulment attorney to discuss your options.

How Do I Start the Process of Annulment in Utah?

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 alimonychild supportchild custody, 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 in Utah?

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.

Religious Reasons for an Annulment in Utah

For many people, annulments are necessary for religious purposes. In many different faiths, divorce is prohibited. If a person does get a divorce, they may be forbidden by their church or temple from ever remarrying within the faith. They could also face other social consequences from other members of their church or religion. A religious annulment is an excellent way to end a marriage without actually getting divorced – but it is not something our attorneys can usually help with. We can, however, help with whatever legal issues there are associated with your annulment or divorce.

With an annulment, some people may be permitted to remarry within their faith and will not have to deal with any social stigma. However, there could be other steps a person must take that occur within the religion itself. These steps are something about which you should consult your church or temple leaders.

Dividing Property After an Annulment in Utah

Even though an annulment completely erases the marriage, the spouses still must go through the process of dividing property in court. Utah follows a rule of equitable division of property. This rule holds that property is divided between the spouses in the fairest and most equitable way. This also means that property is not always divided in an even 50/50 split.

Because property division works in essentially the same way for divorce and annulment, getting an annulment does not provide any advantage or disadvantage to the process. However, the reasons for your annulment could come into play.

The behavior of either party during the marriage can influence property division during the annulment process. For example, a spouse who was the victim of infidelity or spousal abuse may receive more property. Some marriages are annulled because they were entered under fraudulent pretenses. For example, lying about your identity to get someone to marry you would be fraud and grounds for annulment. This kind of dishonesty might make someone less sympathetic in the court’s eye and they may receive less property as a result.

Advantages of Annulments in Utah

Annulments can be challenging to obtain because they apply to very limited circumstances. Generally, marriages that should never have been legal to begin with are eligible to be annulled. However, annulments can come in handy when your marriage was the product of fraud or misrepresentation.

Most of us want our marriages to be based on love and honesty. However, this is not always the case. Sometimes, people are taken advantage of by sly opportunists, often for money. It is not unheard of for people to fake romance or love so they can marry a person with money. In many of these cases, the person being taken advantage of had no idea of their spouse’s true nature. By filing for an annulment, you may be able to escape alimony and property division.

Alimony and property division are still parts of the annulment process, despite the fact that an annulled marriage never legally existed. However, property division and alimony can be influenced by the behavior of each party during the marriage. Bad behavior, such as tricking someone into marriage for their money, could make a court less inclined to provide alimony.

Alimony is designed to keep one spouse from falling into financial ruin after a marriage. In the past, one spouse would stay home with the family while the other spouse worked. This meant one spouse had no income or savings in the event the marriage ended. Alimony was a way of supporting that spouse after the end of the marriage. However, if you can show you have grounds for an annulment because your spouse defrauded you into marriage, they might not get any alimony from you. It would be like rewarding someone for their bad behavior.

Contact Our Utah Divorce and Annulment Attorney for a Consultation

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