There are limited circumstances under which you can annul your marriage rather than obtain a divorce. A marriage may be either void from its inception (ab initio) or subsequently declared void (voidable). If the parties are deemed incapable of marrying at the time of the marriage, it is as if the marriage never existed, and therefore, the marriage is void ab initio. For example, a marriage is void ab initio when either party has another spouse at the time of the marriage or if the parties are each other’s sibling, niece or nephew, or aunt or uncle. If your spouse was physically and incurably impotent at the time of the marriage and you did not know and you have not subsequently ratified the marriage, you may be entitled to an annulment as the relationship is void ab initio. You may have ratified the marriage if, after you became aware of the impediment to the marriage, you continued to live with your spouse. Another ground for annulment arises when either spouse did not have the capacity to marry because of a mental condition or because they were under the influence of drugs, provided that the parties have not subsequently ratified the marriage. Additionally, if either spouse was under the age of 18 at the time of marriage and did not subsequently ratify the marriage after turning 18, the marriage is void ab initio.
With respect to a voidable marriage, the marriage existed and remains valid until a court nullifies it. For example, if either spouse was under duress or there was some fraud perpetrated as to the essentials of marriage and the marriage is not subsequently ratified, a court may annul the marriage. Even if you subsequently ratified the marriage, a court may still grant an annulment under its general equity jurisdiction depending on the facts constituting the fraud. Another ground to obtain a judgment of annulment arises when there was a lack of mutual assent to the marriage.
If you are interested in nullifying your marriage as an alternative to divorce because of religious concerns, it is important to keep in mind that the grounds for annulling a marriage by your church, synagogue, or other religious institution may be different than the grounds for annulling a marriage under the law of your state. In some religions, even people who have received a civil divorce can obtain an annulment with their religious institution. If that is a concern to you, the best approach is to speak to a representative at your religious institution to obtain specific information. You should also speak to your lawyer about the possibility of addressing the religious annulment in your matrimonial settlement agreement.
The consequences of obtaining an annulment rather than a divorce can be significant. Unlike in a divorce, a court does not have the power to order equitable distribution of marital property when an annulment is granted. Therefore, you should carefully weigh with your lawyer the advantages and disadvantages of seeking an annulment rather than a divorce.
About the author of this New Jersey Divorce FAQ:
Cheryl E. Connors is a divorce lawyer and an associate with the family-law team at Wilentz, Goldman & Spitzer in Woodbridge, New Jersey. She practices family law concentrating on issues of divorce law, child custody, visitation, child support, and equitable distribution. She can be reached at (732) 855-6010. View her firm’s Divorce Magazine profile.