Virginia Annulment

Posted on Aug 5, 2015 by Katie Carter

Marriages end for all sorts of reasons. In most cases, marriages end in divorce, and it’s cut and dry and fairly simple. Though different issues, like a business valuation, complicated equitable distribution, or a custody battle can drag things out and make an otherwise simple divorce take longer, most divorces follow a predictable pattern.
But not everyone is convinced that they should get a divorce, even when there’s no question that they’ve entered a marriage that they’d like to get out of. Lots of people wonder about annulment first, especially when the marriage has been of relatively short duration or where they’ve married someone who turned out to have lied about a serious issue.

What is annulment?

An annulment legally erases a marriage, and makes it so that, legally at least, it seems as though it never happened.
A divorce, on the other hand, terminates a legally valid marriage. It’s not like it never happened; it happened, but it is ended by the divorce process.

What’s the difference between a divorce and an annulment?

Well, aside from the obvious difference that an annulment makes a marriage disappear, there’s another major difference. In an annulment, because there was no marriage, there’s also no division of property or assets.
In a marriage, when you accumulate things, you have to formally divide them in divorce. Boyfriends and girlfriends are not the same as husbands and wives. In fact, boyfriends and girlfriends, as far as the law is concerned, are legal strangers—there is no legal relationship. Husbands and wives have interest in each other’s things; boyfriends and girlfriends, like strangers, don’t. Everything is separate and stays separate, regardless of how long they live together or how serious their relationship was.
In an annulment, there’s no equitable distribution. There’s no formal division. There’s no divorce. Once the relationship is dissolved, that’s it.
In a lot of ways, divorce provides protection, because it preserves your interest in any assets that the two of you accumulated together. If you don’t have any assets, this may not matter to you, but if you do, it’s definitely something you’ll want to consider.

Who qualifies for an annulment?

You can’t just get an annulment because you want one, though. In fact, it’s really pretty difficult to get an annulment, except in very specific circumstances.
A lot of people think that just because their marriage was short, or they decided right away that they had made a mistake, that they qualify for an annulment. It doesn’t really work that way, though. In fact, that’s not how it works at all. Annulment really has very little to do with how long you were married.
Really, you can only get an annulment in 3 specific, narrow situations. Let’s discuss.

Situation #1: You can get an annulment when there is a defect in the marriage.

If there is a defect in the marriage, you never had a valid marriage to begin with. There are a couple of different ways this can happen. If there was something wrong at the time the ceremony was conducted, there might be a defect in the marriage. We’ll discuss this more in a minute.
In fact, if there was a defect in your marriage, you don’t qualify to get a divorce, because you never had a valid marriage at all. Your only option in a case like this would be to get an annulment, since you didn’t get married (and, therefore, can’t get divorced).

So, how would you know if there was a defect in your marriage?

There are a couple of different situations where a defect would be found in the marriage, with the most common example of this being one where the marriage commissioner, officiant, celebrant, or clerical officer who performed your ceremony wasn’t authorized to perform marriage ceremonies in the Commonwealth of Virginia. Since you can’t get legally married without having someone who is legally authorized to perform a marriage ceremony presiding over your wedding, you aren’t legally married.
Another way this can happen is if 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. (And, trust me, it happens!)
A third way this could happen is if someone got married who wasn’t old enough, at the time of the marriage, to legally consent. Virginia law 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 legally be married.
Likewise, incestuous marriages are also invalid, so there is a defect in the marriage.

Situation #2: You can get an annulment if your spouse withheld a critical piece of information from you.

I hear this a lot, too. Because he didn’t tell the truth about something, you’d like an annulment. I can understand. It would be really horrible to feel like you had been coerced into a marriage.
It is possible to get an annulment if your spouse withheld critical information from you, but it’s tricky. In fact, very few things qualify as “critical” enough to warrant an annulment. When you share a life with someone, or start considering whether you’d like to 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 qualifies as critical?

Under Virginia law, there are only 4 things that, if withheld, will allow you to get an annulment.
1. If your husband as convicted of a felony prior to your marriage, and he didn’t tell you about it before you got married.
2. If your husband was unable to have children, and didn’t tell you about it before you got married.
3. If your husband fathered a child outside of your relationship within ten months of your marriage, and didn’t tell you about it.
4. If your husband previously worked as a prostitute, and he didn’t tell you about it before you got married.
Yup, that’s it. Those are the only 4 situations where the information is considered critical enough to warrant an annulment.
If he has lied to you about his financial picture or his family background, that doesn’t qualify as critical. Though you may still wish to divorce a person who you married under false pretenses, you can’t get an annulment unless the information he withheld from you falls within those 4 narrow circumstances.

Situation #3: Marriages where fraud is an issue.

Unlike with withheld information, there aren’t specific things that the law sets forth that are fraudulent enough to qualify you to receive an annulment. That doesn’t mean, though, that it’s easy to prove that there was fraud that qualifies you for annulment. Though it’s an open-ended area of the law, you still have to meet all the prongs in a four part test.
1. Your spouse lied or misrepresented something to you.
2. The lie or misrepresentation was intentional.
3. You relied on your husband’s lie or misrepresentation.
4. You were hurt because you relied on your husband’s lie or misrepresentation.
As you can probably already tell, this is 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.
Do you think you qualify? Want to talk it over in more detail with a licensed and experienced Virginia divorce attorney? Feel free to give our office a call at (757) 425-5200. We can help give you some preliminary information, or set you up for an appointment with one of our attorneys.