How to Get a Divorce if Your Marriage Was Never Valid

By Beverly Bird

Couple holding two torn parts of a heart

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If your marriage is a sham, you have two options for ending it. One’s difficult and the other may not be so hard, but it depends on your particular circumstances and whether your spouse wants to put an end to the charade as much as you do.

The Annulment Option

Annulments are designed specifically for invalid marriages -- they rule that the marriage never existed. The legal process requires that you cite, and prove, the reason why your marriage isn’t legitimate. Contrary to popular belief, the duration of your marriage isn’t grounds for annulment -- you won’t automatically qualify just because you’ve only been married a very short time. In some states, however, you may have to stop living together when you realize whatever circumstance it is that makes your marriage invalid. The downside to annulment is that it can be very difficult to prove grounds, particularly if your spouse contests the action. You could go through the whole legal process only to have to court deny your request. You’d then have to start all over again with divorce proceedings.

Grounds for Annulment

Grounds for annulment can vary from state to state, and whether you qualify depends on why you think your marriage was never valid. You can get an annulment in most states if you can prove that your marriage is based on a lie -- this is fraud, but whatever your spouse lied about must usually be so intrinsic to the marriage that it negates the concept of what a marriage is supposed to be. If you were underage and got married without parental permission, this is usually grounds for annulment, as is marrying someone who is too closely related to you or either of you being incapable of consummating the marriage.

No-Fault Divorce

All states recognize no-fault divorce, although sometimes in different forms. For example, in North Carolina, you must be separated from your spouse for a year to qualify, but when you can finally file, a divorce is usually granted relatively easily. In New Jersey, you can file on grounds of irreconcilable differences or a separation of 18 months, and proving either of these circumstances is much simpler than establishing grounds for annulment. In some states, you can cite irretrievable breakdown of your marriage. In any case, the legal proceedings of a no-fault divorce become a matter of sorting out property and custody issues -- you don’t have the onerous task of proving difficult grounds or that your spouse did anything wrong.

Effect on Property and Children

In some states, such as California, annulment doesn’t automatically address custody and child support issues. If you have a child, you must include a request for a paternity test in your petition for annulment so you can legally establish your child’s parentage -- if the court rules that your marriage never existed, parentage isn’t clear cut. Some states, such as Florida, will divide marital property as part of your annulment, but if you live in a community property state where assets are typically divided 50-50, your property may not be divided this way if you were never considered married.

Void Marriages

Under some very limited circumstances, you may not have to take any legal action at all to end your marriage. If your state considers your marriage void, this means that some factor existed to make it against the law in the first place. This would be the case if you married a same sex partner in a state that doesn’t recognize such unions, or if either you or your spouse was already married when you wed. Speak with a local lawyer to make sure, but under these circumstances, no annulment or divorce is necessary because the law never recognized your marriage to begin with.