The Difference Between Annulment And Divorce In Virginia

Ultimately, annulments and divorces produce the same result – they legally end your marriage. However, an annulment treats the marriage much differently than a divorce and there are limited situations in which you can obtain one in Virginia.

ANNULMENT vs. DIVORCE

An annulment differs from divorce in that it treats your marriage as though it never existed. A court will grant an annulment if it finds your marriage was invalid from the beginning (ab initio), or voidable as a result of some later-discovered fact(s).

To obtain an annulment, you must establish a legally-recognized basis and you must bring your action within two (2) years of the date of your marriage.  In Virginia, there are a number of legal reasons why your marriage can or should be annulled:

Incompetence: Your marriage can be annulled if the court finds that at the time you were married, you or your spouse were not mentally able to understand the marriage, or fact that you were getting married and the consequences of doing so.

Bigamy: If you or your spouse were already married to someone else at the time of your marriage, your marriage is legally invalid, and must be annulled. This type of marriage is considered void ab initio.

Incest: If you and your spouse are blood relatives (closer than first cousins), your marriage is invalid and should be annulled.

Impotence: If you or your spouse is not capable of engaging in sexual relations your marriage may be considered invalid. However, if you know about your spouse’s impotence and continue to live with him or her for a period of time after the discovery, you will be unable to annul your marriage for this reason.

Fraud: If you only agreed to marry your spouse due to his or her deception or lie(s) about an important issue or circumstance, then a court will annul your marriage. However, the fraud must be severe enough that a marriage would have never taken place without it, and you can’t have continued to cohabitate with your spouse after you discover their misrepresentation(s). Lies about age, health, wealth, and prior marriages will not be considered bad enough to annul your marriage. On the other hand, lying about your religious beliefs or having a venereal disease will be deemed sufficient.

Minors / Underage: If you or your spouse had not reached the age of consent at the time of marriage, the marriage can be annulled with certain exceptions. Though the legal age to marry in Virginia is 18, you may get married at 16 if your parent(s) or guardian(s) consent. Similarly, you may get married under the age of 16 if you are pregnant and obtain the consent of a parent or guardian. If any of the above exceptions are met at the time you are married, a court will not annul your marriage.

Prostitute or Felon: If your spouse did not inform you that he or she was an active prostitute or convicted felon prior to your marriage, your marriage can be annulled.

Duress: If you only married your spouse due to force or fear of serious bodily harm then a court will consider your marriage invalid. However, you must have been coerced or threatened at the time of your marriage for duress to apply, not some time before.

Sham Marriage: If you or your spouse only got married due to intentions other than the normal purposes of marriage—such as to obtain a green card/citizenship—your marriage can be annulled. This type of annulment is considered one based on fraud, if you were unaware of your spouse’s ulterior motives for marrying you.

Child With Another: Your marriage can be annulled if your wife was pregnant with another man’s baby at the time of marriage, or if your husband has a child with another woman within 10 months of the marriage.

Unlike divorce, the legal effect of an annulment is that you and your spouse were never married. But this does not always mean you will not receive assets or property division upon obtaining an annulment. If your marriage is voidable, due to duress or misrepresentations made by your spouse (fraud), you may still be entitled to a share of marital property. Furthermore, a court can order you or your spouse to pay child support and determine issues of child custody and visitation if you and your spouse have children together. Though your marriage is deemed invalid, any children born during the marriage are deemed legitimate and can inherit from both you and your spouse.

If you are considering annulment, divorce, or need assistance with any other family law matter, you need the help of a knowledgeable family law attorney. Contact us today.

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