Signing legal paperwork

Divorce vs. Annulment: How are they different?

In Massachusetts, married couples can seek to have their marriage ended either by divorce or annulment. While divorce continues to be more widely available and most appropriate in nearly all circumstances, spouses do have the possibility of obtaining an annulment. There are, however, significant differences between the two regarding procedural requirements and legal consequences.

So, what exactly is an annulment? An annulment is a way of ending a marriage because the marriage itself is invalid for some specific reason. Unlike a divorce, however, where the marriage is ended not because the marriage was invalid but simply because either one or both of the spouses wanted the marriage to end for some reason. Once a marriage has ended because of an annulment, the marriage is treated as if it never existed at all.

Most divorces granted in Massachusetts are based on an irretrievable breakdown of the marriage. Basically, that your marriage is so badly broken that there is no hope of reconciliation. On the other hand, annulments can only be granted in very limited situations and only when there is a specific defect in the marriage. From this there are two types of marriages that can end by annulment: void and voidable.

Void and Voidable Marriages

Only marriages that are void or voidable may qualify for an annulment. A void marriage never existed in the eyes of the law, and therefore it was invalid from the very beginning. Void marriages consist of the following circumstances:

  • The spouses are too closely related (incest)
  • One spouse was currently married at the time of the second marriage (bigamy)

Unlike a void marriage, one that is voidable could be ended by an annulment based on the circumstances, but it is not guaranteed. A voidable marriage means that a marriage could be invalid, not that it automatically is, but rather has the potential to become invalid. All void marriages can be annulled, but not all voidable marriages can be.

With a void marriage there is no way to repair the deficiency, the marriage is invalid from the very beginning simply by operation of law. However, a voidable marriage will continue in full force and effect until it becomes annulled.

A marriage may become annulled because it is voidable due to the following:

  • One spouse did not have mental capacity to consent to the marriage at the time it occurred (lack of mental capacity)
  • One of the spouses is not physically capable of sexual intercourse (impotence)
  • One of the spouses was not old enough to get married (underage)
  • There was fraud involved in getting married

If my marriage is void, do I still have to file for Annulment?

Since marriages that are void technically never existed in the first place, no action is needed to annul the marriage. However, in order to prove that your marriage is indeed annulled, and as a safety net, it is always a good idea to have the Probate and Family Court issue a formal Judgment voiding the marriage so there is no doubt as to the validity.

What happens to the minor children after an Annulment is granted?

Simply because a marriage has been annulled, it does not mean the birth certificates of the marital children become void as well. In most instances, the minor children will simply be treated as though the parents were divorced, however, in other situations, the children will be treated as if they were born to parents out of wedlock.

Always request to speak with an experienced Family Law attorney prior to making these types of legal decisions on your own. Sawin Law, P.C. is available at (781) 713-1212 to discuss your concerns about annulments or other divorce matters.