Virginia Divorce or Annulment: Do I Qualify?

Women ask me all the time, “What’s the difference between a divorce and an annulment, and which do I ask for?”

An annulment erases a marriage that wasn’t valid to begin with. A divorce ends an otherwise valid marriage, and divides the legal rights and responsibilities between the parties. If your marriage is annulled, it becomes like the marriage never happened. A divorce doesn’t erase the marriage, but simply ends it.

There are advantages and disadvantages to each. An annulment erases the marriage, and it becomes like it never happened. At the same time, though, because you are not recognizing that a valid marriage ever took place, when your marriage is annulled, you have no right to spousal support or equitable distribution of marital assets.

You can end a marriage for any number of reasons. In Virginia, we recognize both fault and no fault grounds for divorce—meaning that you can seek a divorce from your husband on the grounds of adultery, cruelty, apprehension of bodily hurt, desertion—or you can seek a divorce based on no fault grounds, if you live separate and apart from each other without cohabitation for a period of one year or more. (Note that the one year period is reduced to six months if you have no children born of the marriage.)

Whether you qualify for an annulment is a little more complicated.

In order for a court to find that your marriage wasn’t valid to begin with, your marriage has to fall into one of only three categories.

The THREE types of Virginia Marriages that qualify for annulment are:

1. Marriages involving fraud.

2. A marriage where there is a defect in the marriage itself.

3. Unions in which one of the spouses withheld a crucial piece of information from the other

First, you may qualify for an annulment if your marriage was fraudulent. In order to prove fraud, you must prove each of these four elements. You must show

1. A misleading or fictitious representation by your spouse

2. The misrepresentation was intentional

3. You had full faith and trust in your spouse, and

4. You suffered damage.

You can also get an annulment when there is a defect in the marriage itself. But when is there a defect in the marriage? What does that mean?

There are four common scenarios. There is a defect in the marriage when (1) your wedding was performed by someone who wasn’t legally qualified to officiate, (2) you or your spouse were still legally married to someone else at the time of this marriage (we see it all the time! One of the parties thought he was divorced, but somehow their divorce paperwork had never been fully processed.), (3) one of you was too young to get married at the time of the marriage, or (4) one of you was mentally handicapped at the time of the marriage.

Another ground for annulment is withholding critical information.

In the law, only certain categories of information are “critical.” Just because some detail was omitted that you would have liked to have known prior to your marriage does NOT mean that your marriage automatically qualifies to be annulled. In fact, the kinds of withheld information that qualify you for annulment are VERY limited. Two examples of information that, if you husband withheld it from your prior to your marriage, would qualify you for an annulment are (1) if your husband didn’t tell you that he was convicted of a felony, and (2) if your husband didn’t tell you that he was impotent.

Here is a list of specific grounds that would qualify you for an annulment:

  1. No license/solemnization. Your marriage ceremony was performed without a valid license or without a qualified officiant.
  2. Bigamy. The marriage was entered into prior to the dissolution of an earlier marriage of one of the parties.
  3. Incest. The marriage was between two relatives who are legally forbidden to marry.
  4. Lack of Capacity (Underage). One or both of the parties lacked capacity because he or she is too young to marry.
  5. Lack of Capacity (Mental Infirmity). One or both of the parties lacked capacity because he or she was mentally incompetent at the time.
  6. Fraud or duress. The fraud must materially affect the essentials of the marriage.
  7. Impotence. At the time of entering the marriage contract, one party was naturally or otherwise incurably impotent.
  8. Felony Conviction. Either party, without the knowledge of the other, was convicted of a felony prior to the marriage.
  9. Pregnancy by a Third Party. At the time of the marriage, the wife, without knowledge of the husband, was pregnant with another man’s child.
  10. Pregnancy of a Third Party. At the time of the marriage, the husband, without knowledge of the wife, fathered a child born to a woman other than the wife within 10 months after the marriage was solemnized.
  11. Prior prostitution. Either party, without the knowledge of the other, had been a prostitute prior to the marriage.

If you believe you may be entitled to an annulment, you should speak to an attorney immediately to preserve your rights.

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