General Guide to Annulment in Virginia
Annulment is a legal declaration by the court that the parties' marriage never existed and that the marriage is void. There are several grounds for annulment, which fall under two categories: “void” marriages and “voidable” marriages.
When a marriage is annulled as a “void” marriage, it is as if the marriage never existed from the beginning. Void marriages include (1) a marriage to someone who is already married; and (2) a marriage to a close relative. Although, it is not required for the parties to file for annulment in case of a void marriage because the marriage is not recognizable under the law, the parties may still want to file for an annulment in order to obtain a court order declaring the marriage as void.
Voidable marriages include marriages that are legally valid until it is declared to be annulled by the court. Under this category, because the marriage is recognized as a valid marriage, if a party wants to challenge the validity of the marriage, an action for annulment must be filed with the court.
Under the Virginia Code § 20-89.1, the grounds for annulment of a voidable marriage include:
(1) fraud or duress;
(2) the physical impotence of a party existing at the time of the marriage;
(3) marriages where either party did not know at the time of the marriage that the other party had been convicted of a felony prior to the marriage or had been a prostitute;
(4) marriages where the wife did not know that her husband had fathered a child born to another woman within 10 months after the marriage;
(5) marriages where the husband did not know at the time of the marriage that his wife was pregnant with the child of another man;
(6) mental incompetence;
(7) certain underage marriages solemnized on or after July 1, 2016; and
(8) marriages that did not comply with the licensing and solemnization requirements (see Virginia Code § 20-13).
Defenses to Annulment
Virginia Code § 20-89.1(C) outlines the defenses for voidable marriages. If the party filing for annulment has continued to cohabit with the party after knowledge of the facts giving rise to what otherwise would have been grounds for annulment, the other party can raise the defense of “ratification.” In addition, if the parties were married for a period of two years prior to initiation of the annulment action, no annulment will be granted.
Annulment versus Divorce
In a divorce case, the court has the authority to equitably divide marital assets and debt, and award spousal support. Marital assets include any and all assets acquired during the marriage, regardless of how the title is held (i.e. jointly or in one party's name). However, in an annulment case, the court has no authority to rule on division of property, debt, or spousal support, because once the marriage is declared void, the parties are not subject to equitable distribution laws applicable to married couples. However, the court has the authority to decide child custody, visitation, and child support issues.
Figuring out whether to file for divorce or for an annulment can be difficult. It is important to consult with an attorney to figure out the best course of action in your case. Contact us today to schedule a consultation.