Things aren’t working out and, for one reason or another, you are probably wondering whether divorce is the only option available to you. Maybe your husband lied to you about something critically important; a lie, frankly, without which you would not have married him. Maybe you realized your mistake really quickly; maybe you realized it, in fact, right after you said “I do.”
There are all sorts of things that can go wrong in a marriage and, for some reason, you don’t feel like a divorce is the right, most appropriate, course of action. If you’re wondering, based on the facts of your specific case, whether an annulment might be the better choice for you, you’re not alone.
Lots of people wonder about annulments first, especially in cases where something big has gone awry early on. But can you get an annulment? What are the grounds for annulment? If you’re wondering whether you qualify for an annulment and, if so, how to begin the process of annulling your marriage, you’re in the right place.
Do I qualify for an annulment?
Before I go too far into analysis here, let me say, quickly, before you get too emotionally invested, you probably can’t get an annulment. Annulments aren’t easy to get, and, really, that’s for your protection. When a marriage is annulled, legally, at least, it’s like it never happened. While a divorce ends a legally valid marriage, an annulment makes it as though it never happened at all.
Depending on how you feel about that—your status as either a divorcee or someone who was never married—may affect how you feel about how you would like your marriage to end. Of course, you can’t erase it from your memory, so there’s that.
But, still, it is difficult to qualify for an annulment. Why? Because, in a relationship that is annulled, there’s no divorce. That sounds good (and probably really, really, ridiculously obvious), but think about what else that means. If there is no marriage, and no divorce, then there’s no marital property. There’s no spousal support (neither of you were married, so no one is a spouse, and no one is owed support on that basis). There’s no equitable distribution, either.
In a lot of ways, divorce is a form of protection. The law protects people who are married in the event that things don’t work out. Certain forms of protection are just not available to people who were only ever boyfriend and girlfriend. There’s a reason why people get married (aside, of course, from the fact that they fall in love and make a decision to spend their lives together) – there are specific, tangible benefits from marriage. Benefits that just don’t extend to other types of relationships or partnerships. Divorce is, simply, there to protect the parties entering into it. Without a marriage, there can be no divorce, which is a major drawback to receiving an annulment.
If you want an annulment, you’ll have to be okay with giving the rest of these things up. You should consider that now—before you move forward with any other potential alternatives. Do you own any marital property? Would you otherwise be planning on asking for support? Are there any benefits to marriage (like, for example, that you’d like health insurance to last until entry of a final divorce decree) that would be uncomfortable to do without? You may wish, at this point, to consult with an attorney to weigh your options. Even if you DID qualify for an annulment (which is, honestly, unlikely), is that what you would really, honestly want?
There’s no question that there’s some advantage to the marriage just disappearing, or being able to pretend that it never happened.
So, how do you know whether you qualify for an annulment?
Annulment is only an option in a couple of narrow circumstances.
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 from the beginning.
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).
What does it mean that 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. In Virginia, you can’t be legally married without having someone who is licensed to perform marriage ceremonies solemnize the marriage, so you wouldn’t be 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!)
You could also have an invalid marriage if one of the parties was too young to legally give consent to the marriage. In Virginia, if you’re married before a certain age, you can’t be really married. If you were too young to get married on the date that your marriage occurred, you’re not legally married.
Incestuous marriages are also invalid, so there is a defect in the marriage.
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.
But what qualifies as critical? To you, it may mean one thing. But under the law, it means something completely different. 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.
Under Virginia law, 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.
That. Is. 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.
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.
What if I don’t qualify for an annulment?
If you don’t qualify for an annulment, that doesn’t mean you’re stuck. In Virginia, you don’t have to stay in an unsatisfying, unfulfilling, or otherwise unhappy relationship. We have fault based divorce, and we have no fault divorce. Essentially, you can get divorced for any reason, good or bad, or no reason of all. Of course, there’s a reason; I don’t mean to suggest that there’s not. I just mean to say that you don’t have to worry about “qualifying” to end your relationship. Divorce is an option, even if annulment is not.
If I do qualify for an annulment, how do I annul my marriage?
You’re going to want to schedule an appointment with an attorney. We can help draft the necessary paperwork to obtain an annulment. It’s not difficult, but it is very time sensitive, so you’re going to have to take steps quickly to make sure you preserve your rights.
For more information, or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.