What is the difference between getting a divorce or an annulment?

August 23, 2019

 

One must note that ending a marriage is never easy. However, a divorce may not be your only option. An annulment and a divorce both make a final determination regarding marital status. While a divorce ends an existing marriage, an annulment declares a marriage to have never legally existed or been valid in the first place. Florida statutes don’t explicitly address annulment, but appellate courts have issued binding decisions about annulment, called precedent; these decisions are what make up Florida’s annulment law.

 

There are two types of divorce in Florida: a simplified dissolution of marriage and a regular dissolution of marriage. All divorce cases are handled in the Circuit Court division of the Florida court system. For either divorce it must be shown that: 

  1. Both parties are married

  2. One spouse has resided in Florida for six months before filing for divorce

  3. The marriage is irretrievably broken (i.e. there is nothing the husband, wife, or court can do to fix it). 

 

In a simplified dissolution of marriage both couples ask the court for divorce which makes them both petitioners. Couples who decide on a simplified divorce typically agree on set terms and are willing to cooperate with one another. In addition to the requirements above, to seek this type of divorce there must be no minor children from the marriage, the wife must not be pregnant at the time of filing, both spouses must complete a “Financial Affidavit” (a written delectation regarding property and finances) and a “property settlement agreement” (to settle all property issues) even if neither spouse have property, and both spouses are required to attend the final divorce hearing.

 

A regular dissolution of marriage may be uncontested or contested. Only one spouse asks the court for the divorce, making them the petitioner, and the other spouse would therefore be referred to as the respondent. After the petitioner files for the divorce with the clerk of courts, the divorce papers will be served onto the respondent. The respondent is then required to file a written answer. 

 

The differences between uncontested and contested divorce are outlined below: 

 

  • Uncontested Divorce:

  1. Both spouses have to settle issues in a signed “marital settlement agreement”, also referred to as a divorce settlement; the issues may be related to property, debts and minor children from the marriage. 

  2. Both spouses will also complete a financial affidavit within 45 days of submitting the divorce paperwork even of neither party has property. 

  3. Uncontested divorce allows for the case to be settled before filing the petition to the court which makes it less complicated and less costly.  

 

  • Contested Divorce:

  1. The spouses can’t come to an agreement and require a trial in front of a judge to come to a decision on their case.

  2. One spouse will file the divorce papers and the other will answer

  3. Contested divorces tend to be more expensive and take longer since they’re through the court system.

 

With respect to annulments, the Florida appellate courts have established some reasons, or grounds, for annulling a marriage. Florida makes a distinction between void marriages that were invalid from the start and voidable marriages that weren’t necessarily invalid from the start. The grounds for annulment are as follows:  

 

  • The marriage is void because it's bigamous (a spouse is legally married to more than one person), or incestuous (the couple is closely related by blood or marriage), 

  • The marriage is voidable because one of the spouses lacked the capacity (ability) to consent to marriage because at the time of the ceremony, the spouse was suffering from a serious but temporary mental problem or was under the influence of intoxicating alcohol or drugs.

  • The marriage is voidable because one of the spouses used fraudulent acts or misrepresentations to trick the other spouse into entering the marriage (annulment action must be brought within 3 years of the discovery of fraud). Not all misrepresentations will qualify. A qualifying fraud goes to the essence of the marital relationship. For example, if Spouse A lied about having have a serious disease like tuberculosis, that lie wouldn't be a basis for annulment. However, if Spouse A married Spouse B but had no intent to live with Spouse B as a married couple, that could be the basis of an annulment.

  • The marriage is voidable because one or both spouses only entered into the marriage because they were under duress (defined as extreme coercion or possibly even force).

  • The marriage is voidable because one spouse is underage and entered the marriage without the consent of a parent or guardian.

  • The marriage is voidable because one spouse is impotent, and the other spouse didn't know it at the time of marriage.

  • The marriage is voidable because one or both spouses entered into the marriage as a joke.

 

The petition should explain why the marriage is void or voidable. If the other party (the defendant) doesn’t agree with what the petition states, they have the right to file a counterclaim for dissolution of marriage, if the defendant wins on that counterclaim, the court will grant a divorce not an annulment.  After an annulment is finalized, the former spouses can’t assert the property rights of a spouse, inherit on the basis of marital status, or claim the other’s retirement, insurance, or other benefits. Property will be divided by the couple and regardless of whether the marriage is deemed voidable or void, the court will make decisions regarding child custody, support and visitation through a parenting plan.

 

Whatever option you decide to pursue, it is important that you consult with an attorney. Separating from a partner can be traumatic for everyone. Having an experienced lawyer by your side will make the process less daunting and easier to navigate. 

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