When a relationship reaches the point of separation or divorce, it can create a stressful situation filled with emotions, especially if your breakup is the result of your spouse lying to you about a critical topic, like children.
It’s okay to feel hurt and betrayed by your recent discovery, but before you start the annulment process, you should make sure that you understand the requirements. This article will help distinguish the difference between a traditional divorce and annulment and clarify which procedure is most appropriate for your situation.
Traditional Divorce Versus Annulment
Regardless of where you live, if either spouse wants to end a marriage, the state will allow you to petition the court for a no-fault divorce. No-fault divorce means that you only need to demonstrate to the court that your relationship is too damaged to repair. Every state has specific rules for filing, but the basic principle is that once either spouse believes the marriage is over due to irreconcilable differences or separation, the court should grant a divorce.
While some states offer fault-based divorce, most couples choose to follow the less cumbersome no-fault process. Fault divorce requires the filing spouse to allege a specific (state-approved) reason for the breakup and then prove it to the court. Some of the most common fault grounds include adultery, abuse, and abandonment. A fault divorce is typically more expensive and time-consuming than a no-fault divorce.
During either divorce process, couples often work together to decide how to handle custody and visitation, property division, and financial support issues. If the couple can't agree, a judge will have to decide. After the court finalizes the divorce, both spouses are legally single and free to remarry in the future, but there’s a permanent record of the marriage and divorce.
Annulment is similar to divorce in that it legally terminates a marriage, but in the end, the court treats your marriage as if it never happened. The rules for filing an annulment are like filing for a fault-divorce, except the goal is to convince the court that your marriage is void or should have never happened, and as a result, shouldn’t be a part of your permanent record. Once you file, you’ll need to prove your allegations with evidence, like witness testimony or physical documents. If you fail to convince the judge that you qualify for an annulment, you’ll need to follow your state’s traditional divorce process.
The decision to file for a divorce or an annulment is a personal one. First, you’ll need to evaluate whether your relationship qualifies for the annulment process and then evaluate whether it’s in your best interest to do so.
Grounds for Annulment
Annulments are rare and reserved only for the cases where a marriage wasn’t valid from the start. If you believe your marriage qualifies, you must file within your state’s required timeframe. Each state’s guidelines vary, but most need the filing spouse to apply for an annulment within 6 to 12 months after discovering the facts that led to the decision to end the marriage. Failure to file a timely request may result in the court automatically denying your request for an annulment.
In your petition, you’ll need to tell the court why you need an annulment. Although every state’s requirements for annulment vary, the most common grounds include:
- Incompetence-when the court previously determined that either spouse was of an unsound mind to make legal decisions and that spouse didn’t have court permission to marry, or if either spouse was underage and didn’t have parental permission to marry. Incompetence also includes if either spouse was under the influence of drugs or alcohol and unable to consent to the marriage.
- Bigamy- most states prohibit bigamy and polygamy, so annulment is appropriate if one spouse was already married to someone else at the time they got married.
- Impotence- when a man is impotent and can’t consummate the marriage, it can void a marriage.
- Coercion or duress- when a spouse forces another to get married by threatening physical violence.
- Fraud or misrepresentation- if a spouse marries only for a green card or intentionally misleads a spouse about a substantial issue just to get married, the court can void the marriage and treat it as though it never existed.
Based on the facts you presented in your question, it sounds like your wife might have misrepresented her ability and intention to have children to get you to marry her. Depending on when you discovered the misrepresentation, you may have a limited amount of time to file for an annulment.
After you submit your motion to the court, the clerk will schedule a hearing with a judge, which is where you will need to bring proof of your wife's medical procedure, including documents to show she had it done before the wedding. You’ll also need to demonstrate that you relied on your wife’s misrepresentation in deciding to go through with the wedding. In other words, if she would have told you the truth, you wouldn’t have married her.
Property Division During Annulment
When a court approves an annulment, it’s usually for a short-term marriage, so it’s generally easy for the judge to decide how to divide the couple’s property. Typically, the court will try to restore both parties to the same position they were in before the marriage by awarding property back to the original owner. For example, if a wife owned a home before the marriage, it’s separate property, and the court would grant it back to the wife after an annulment.
Sometimes, though, couples acquire property early in the marriage and can’t decide how to divide it, so the court will intervene. Property division in annulment proceedings varies from state-to-state, but if possible, the court will try to trace ownership of the property back to the original owner. If it’s not possible to determine ownership, the court will divide the property fairly.
401k retirement accounts can be valuable, especially if the market was thriving during your marriage. Before you start the annulment process, it would be beneficial for you to get a copy of your wife’s 401k account to show if there was an increase in value during your marriage. If there was an increase, you might need to file for a traditional divorce to receive a portion of the asset or risk losing your marital interest in the account.
An annulment might affect your share of the property division, so it’s important to speak with an experienced divorce attorney before you file.