Can I Get a Virginia Annulment?
Annulment is a legal process through which a marriage is erased. It’s different than a divorce, which just legally terminates a marriage. Annulment legally makes it as though the marriage never happened, whereas a divorce just ends an otherwise valid marriage. As you can probably imagine, for a lot of women, it’s really encouraging to think that a bad marriage could simply be erased, so that it would be like it never happened, rather than having to petition the court and follow all the necessary steps to have it formally ended.
It’s understandable. Having to admit, to yourself and to family and friends (many of whom probably attended your wedding, threw your showers, and gave you gifts), that things didn’t quite work out is embarrassing and uncomfortable. It feels like a failure, and it also feels pretty bad to think that, instead of being someone’s wife, you’ll become an “ex wife” or a “divorcee.” To some people, these labels really matter, especially if they feel like there’s some stigma attached to them. It feels a little nicer, a little kinder, a little easier, to just get an annulment. That way, you can both go your separate ways and never speak to each other again, and it really will be (almost) like it never happened.
Women are interested in annulment for other reasons, too. In some cases, women like the idea of an annulment for religious reasons. Depending on your faith, your status as a “divorcee” could have different implications. For Catholics, divorced women aren’t typically allowed to take communion, and, in the event that they remarry, they can’t do so in the church without securing an annulment for the first marriage. Jews, on the other hand, recognize divorce as a part of life, but for a divorce to be effective the husband must give the wife a bill of divorce called a “get,” which legitimizes the divorce. Without getting the get, the woman would still be recognized as legally married to the husband, and unable to marry again. In a lot of cases, though, religious annulments are different (and carry different requirements) than legal annulments. If an annulment is important to you for religious reasons, you may want to talk to a representative from your religious institution to help point you in the right direction. It may be possible to get an annulment within the confines of your church or temple when you wouldn’t be able to get a legal annulment from the Commonwealth of Virginia.
For some reason, there are a lot of different misconceptions about annulment. People seem to think that they can get an annulment for all sorts of reasons, like because their marriage was very short, because it was never consummated, because he cheated, or because he did something else terrible, like fathered a child outside of the marriage.
Really, though, there are very few reasons that qualify a person to get an annulment in Virginia. Like a divorce, grounds for obtaining an annulment are different in Virginia than in other states. Family law in particular is very state specific, so what the laws in one state can be the same or completely different from the laws in another state. If you Google “annulment,” you may find grounds for annulment that apply in other places but that won’t work in Virginia courts. It’s incredibly difficult, if not impossible to get an annulment almost everywhere, and Virginia is no exception.
Why is it so difficult to get an annulment?
It’s difficult to get an annulment (not just in Virginia, but everywhere), because the law has an interest in dissolving lawful marriages.
It may sound strange, because, after all, why would the government really care whether your marriage legally happened or didn’t happen? It does matter, though. When you get a divorce, the law gives the courts the power to do all sorts of things—most importantly, to you, at least, the court has the power to divide all the marital property (which includes the typical “big money” assets in a divorce, like bank accounts, the marital home or other real estate, retirement accounts, and other investments that you may have made during the marriage). If you’re not getting a divorce (because what you’re saying to the court is that no marriage ever existed between the two of you at all), the court has no power to help you unravel your union at all.
If you don’t have any assets, or things are more or less cordial between the two of you, that may not be a problem. But, if the two of you have marital assets, you may prefer to get a divorce, just to safeguard your interest in anything earned or acquired during your marriage, and, if the two of you just can’t get along, you may need a little more help than others as you try to end your relationship. After all, how do you fairly or equitably divide a car or a house that was purchased “during the marriage” if you decide later that your marriage never actually happened? If the two of you can’t come to some kind of agreement together (without the help of the courts), it may be difficult, or completely impossible to figure out how to fairly divide it between the two of you. Legally, the property belongs to both of you—if you were married when you acquired it. But if you weren’t, to whom does the property belong? The court really has no authority to get involved, and that could be incredibly difficult for everyone involved, especially if the tensions between you are high.
The court doesn’t like this murky gray area, and the legal trouble that it generates. In a way, the court is actually looking out for you by not allowing annulments to happen easily. If you have any marital assets at all, you should really think twice about whether you’d like to get an annulment. Even if you qualify for one, which is probably unlikely, you could be accidentally hurting yourself in the long run by avoiding the protections provided by the divorce process. (Yes, really—divorce IS designed to protect you!)
So, how do I qualify to get an annulment?
If you don’t really have any property and aren’t worried about dissolving your relationship without help from the court, the idea of getting an annulment may still be attractive to you. Keep in mind that the laws really can vary a great deal from one state to the next, and I’m only telling you about what the law in Virginia is. If you live somewhere else, the law will probably be different.
There are three types of marriages where annulment is a possibility. Yes, only three. No, no exceptions. No, it doesn’t matter how long you’ve been married, or whether you’ve had sex yet. These three types of situations are the ONLY situations where, in Virginia, you qualify to have your marriage annulled. (Of course, like we discussed before, whether you actually decide to get an annulment, even if you qualify, is another issue entirely.)
Here are the 3 types of “marriages” that can be annulled:
1. Where there is a defect in the marriage itself.
There is a defect in the marriage if something was wrong at the time that the marriage was entered into, which means that you never actually had a valid marriage to begin with. Since your marriage was never valid anyway, you can’t get a divorce—because there was no marriage. In this type of case, your only real option is an annulment (unless you went back and remarried to correct the mistake that was present at the time you originally married).
How would I know if there was a defect in the marriage itself?
If, for example, your marriage commissioner, officiant, celebrant, or clerical officer wasn’t authorized to perform marriage ceremonies in the Commonwealth, you may qualify for an annulment because your ceremony wasn’t performed properly. Without the proper licensing, you were never officially married, so you don’t have to get divorced.
Likewise, if one of you was already legally married to someone else at the time of your wedding, you would qualify for an annulment. You qualify for an annulment in this case because you can’t be legally married to two people. If you were married to someone else at the time, you’ll have to get divorced to that person. You never really married the second person, though, because you weren’t legally free to do so. You can’t get a divorce in your second “marriage,” because there actually wasn’t ever a legal marriage to begin with.
Similarly, too, if one of you was too young to legally consent to the marriage when it was entered into, you weren’t actually married (because you weren’t old enough to agree to be married at all), so you don’t qualify for a divorce. If you’re too young to get married, the law assumes that you don’t have “capacity.” When you don’t have capacity, you can’t legally consent to do something. You lack capacity when you’re too young, too old (in some cases), or suffer from some kind of mental impairment. You would have to get an annulment.
Along these same lines, an incestuous marriage would be invalid, and therefore subject to an annulment. If one of you lacked the capacity (again, just a fancy word for legal understanding) to get married, like if, for example, one of you suffered from a mental illness so severe that you were incapable of agreeing to get married, you would qualify for an annulment.
To use these grounds, you qualify if there is some sort of underlying reason why your marriage was not valid on the day it was performed. Because there was no actual marriage (because it was against the law, because you couldn’t consent, or because there was a problem with the ceremony itself), you would have to get an annulment and would not qualify for a divorce.
2. Where one party withheld critical information.
In this scenario, unlike with the previous example, you might qualify for an annulment even if you had an otherwise perfectly valid marriage. Of course, there are lots of things that could be withheld that you probably would like to have known before you got married, but not every piece of information qualifies as critical.
As a general rule, any lies that he may have told you about his financial future or his lineage typically are not considered critical. If he said that he was the Earl of Something or Other and that he had an annuity of $3.5 million dollars per year, the court probably wouldn’t have found this sufficiently “critical” to provide grounds for an annulment. Just because he omitted something, or even lied about something, doesn’t mean that your marriage automatically qualified to be annulled.
There are only certain, specific, limited things that count as “critical” information. In order to get an annulment because of some kind of information that your husband withheld, it would have only work in a couple super limited situations. A couple good examples of information that would be considered fraud: (1) if he was convicted of a felony prior to your marriage and didn’t tell you about it, (2) if your husband didn’t tell you before you got married that he was impotent (unable to have children), (3) if your husband fathered a child within ten months of your marriage, or (4) if either of you had a prior career in prostitution and didn’t disclose this information prior to your marriage.
3. Where there is fraud.
Your marriage may also be annulled if a court finds that there was fraud involved. To prove fraud, you have to prove that these four things exist:
1. That your spouse lied or misrepresented something to you.
2. That your spouse intentionally lied or misrepresented something to you.
3. That you relied on that lie or misrepresentation.
4. That it hurt you to rely on that lie or misrepresentation. (Essentially, that you were damaged.)
The standards for proving fraud are very high, and it can be incredibly difficult to convince the court that all four of these elements apply in your case.
If you suspect that you may qualify for an annulment, you should talk to an attorney as soon as possible to learn about your rights. Even if you don’t qualify for an annulment, but you want to end your relationship, you can move forward with a divorce. Either way, it’s a good idea to talk to an attorney about your options, and come up with a plan of action that addresses your concerns, protects your property and investments, and gives you the best new start possible. Call our office today at (757) 425-5200 to schedule a confidential one hour consultation with one of our licensed, experienced, compassionate Virginia divorce and custody attorneys.