Annulment in Virginia

Posted on Dec 17, 2014 by Katie Carter

We’ve heard it all.  Women everywhere are full of reasons why they think they qualify to get an annulment.  Whether it’s merely that they were only married a short time, that the marriage was never consummated, or that they married too quickly, there seem to be tons of reasons that women think they can get an annulment.

I can understand the appeal, of course.  It would be nice to think that, instead of having to get a divorce, you could pretend like the marriage never happened.  Because that’s the real difference: a divorce ends a legally valid marriage, while an annulment makes the marriage disappear.  The premise of an annulment is that the marriage was never valid to begin with, so, rather than terminating it, it just disappears.  It becomes like the marriage never happened.

That’s appealing, probably for a million reasons.  Most of all, it’s because it doesn’t seem like a mistake if you can just erase it.  And it doesn’t come with a label.  Even though the social stigma associated with divorce has all but disappeared, it is difficult for a lot of women to imagine the end of their marriage and becoming a divorcee.

Still, annulments in Virginia are incredibly hard to get.  The courts don’t just hand them out willy nilly.  In fact, you can only get an annulment in Virginia if you qualify under certain, specific, very limited circumstances.  They are so rare that, even for divorce attorneys who practice family law every single day, only see a few over the course of their careers.  I know, you’d think we do annulments all the time.  And we probably would, if the law allowed it, because we get tons and tons of requests for more information about annulment.

Today, we’ll talk about two main things: (1) first and foremost, we’ll talk about grounds for annulment so that you can tell whether you qualify and, (2) secondly, and most importantly, we’ll talk about why you don’t want an annulment anyway.  Because, let’s be real, in most cases, if you’re asking whether you qualify for an annulment, the answer is no.  And do you really want one?  In my opinion, no, you don’t—but read on, and we’ll talk about it in a little more detail.  After all, the most important thing you can do is get the information now, so that you can make the best decisions possible so that you can get your brand new start.

    How do you know if you qualify for an annulment?

There are only a few narrow, limited scenarios where you qualify to receive an annulment.

1.    Marriages were there was a defect in the marriage itself.

You never had a valid marriage if there was something wrong at the time the marriage ceremony was conducted.  Since your marriage wasn’t valid, you don’t qualify to get a divorce.  If you want to end the relationship, your only real option is annulment, because you never had a marriage (and therefore can’t get a divorce).

    How might you know if there was a defect in your marriage?

There are a couple of different ways there could be a defect in your marriage.  The most common example of this is when the marriage commissioner, officiant, celebrant, or clerical officer who performed your ceremony wasn’t authorized to perform marriage ceremonies in the Commonwealth of Virginia.  You can’t get legally married without having someone legally authorized to perform marriage rites presiding over your ceremony, so you couldn’t get a divorce.

It happens sometimes when one party was already legally married.  Usually, this happens accidentally; they thought a divorce decree was entered, but it turns out that they were mistaken.  But, since you can’t legally be married to two people, the second marriage is invalid, and you can’t get a divorce.

Virginia law also prohibits people to get married before a certain age.  If you were too young to legally consent to the marriage when you got married, you wouldn’t qualify for a divorce.

Incestuous marriages are also invalid, and therefore not a legally valid marriage.  Since you can’t legally get married, there is no marriage, and you’d have to break it off with an annulment, rather than a divorce.

2.    Marriages where one of the spouses withheld a critical piece of information from the other.

There are certain, narrow situations where, if you or your “husband” have withheld specific information, you qualify to receive an annulment.  Of course, this doesn’t apply to any situation where you feel like your spouse withheld information that you believe is critical.  When you share a life with someone, there are lots of things that you probably believe you have a right to know before you say “I do,” but, legally at least, only a very, very narrow category of information qualifies as sufficiently critical to qualify you for an annulment, rather than a divorce.

So, what kind of information is critical?

Well, there are 4 things that the law specifically provides:

a.    If either of you was convicted of a felony prior to your marriage, and failed to disclose this information prior to marriage.
b.    If, at the time you married, your husband didn’t tell you that he was impotent (unable to father children).
c.    If your husband fathered a child outside of your relationship within ten months of your marriage.
d.    If either you or your husband had a prior career in prostitution and didn’t disclose it before you married.

Generally speaking, anything regarding his finances or family background doesn’t qualify as critical.  If you thought, when you married him, that he was a plastic surgeon who earned $800,000 per year, it won’t qualify as critical.  The fact that he omitted to tell you something, or even lied to you, doesn’t automatically mean that you qualify to receive an annulment.  In fact, in 99% of cases, you don’t qualify.

3.    Marriages where fraud is an issue.

Fraud is the only open-ended area of the law related to annulment.  There aren’t specific, previously identified grounds that automatically qualify (or disqualify you) for an annulment.  That doesn’t mean, though, that it’s super easy to qualify using this category.  To prove fraud, you have to meet all the prongs in a four part test.

a.    You have to prove that your spouse lied or misrepresented something to you.
b.    You have to prove that the lie or misrepresentation was intentional.
c.    You have to prove that you relied on the lie or misrepresentation your husband made.
d.    You have to prove that you were hurt by your reliance on the lie or misrepresentation.

Obviously, it’s still pretty narrow—not only do you have to prove that there was a lie or misrepresentation, you have to also prove that you relied on it and that you suffered damage as a result.  It’s tough, which is why so few annulments are actually granted in Virginia.

Reasons why you don’t want an annulment anyway

Sure, an annulment can make it all go away.  But, really, is that what you want?  It would be easier in some ways, but that doesn’t mean that it’s necessarily the best option.

In a divorce, the law helps you figure out how everything is going to be divided because, in a marriage, over time, a certain amount of property and belongings are acquired.  Not only that, but the law has an interest in dissolving lawful marriages.

When you get a divorce, the law gives the courts the power to do all sorts of things—including dividing marital property (including the big assets, like bank accounts, real estate, and retirement savings).  If you’re not getting a divorce, the court has no power to help you untangle things as you break off your relationship—because, after all, there was no valid marriage to begin with.

If you and your husband don’t really have any assets, you may not care a whole lot.  But, if you do, having the power of the court to help you as you end your relationship can make things a whole lot easier.  A divorce safeguards your interests in whatever was earned, purchased, or acquired during the marriage—an annulment just makes it disappear.  There’s no additional help for the individual people there.  Even if you don’t have assets together, if things are contentious (meaning that the two of you are having trouble reaching any agreements about how to end your relationship), you may need more than a little extra help anyway.  The support of the court can be invaluable.

In a way, by refusing to allow most people to get annulments, the court is actually looking out for you.  Believe it or not, divorce is essentially designed to help protect you.  Ask yourself, “do I really want to give that protection up?”  If you have any assets at all, you probably don’t.

If you’re still wondering whether you qualify to receive an annulment, or have more questions about your unique situation, give our office a call at (757) 425-5200.