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 that your marriage was invalid from the beginning (ab initio), or voidable due to certain later-discovered facts.
To obtain an annulment, you must establish a legally recognized basis and bring your action within two (2) years of the date of your marriage. In Virginia, several legal reasons justify annulling a marriage:
1. Incompetence
Your marriage can be annulled if the court finds that at the time of the marriage, you or your spouse were not mentally able to understand the marriage, or the consequences of getting married.
2. Bigamy
If you or your spouse were already married to someone else at the time of your marriage, it is considered void ab initio and must be annulled.
3. Incest
If you and your spouse are blood relatives (closer than first cousins), your marriage is invalid and can be annulled.
4. Impotence
If you or your spouse are incapable of engaging in sexual relations, the marriage may be annulled. However, if you know of your spouse’s impotence and continue to live together after the discovery, you may lose the right to annul the marriage for this reason.
5. Fraud
If you agreed to marry your spouse due to deception or a significant lie, the court may annul the marriage. The fraud must be severe enough that the marriage wouldn’t have occurred without it. You cannot continue living with your spouse after discovering the fraud. Lies about age, health, wealth, or prior marriages generally do not qualify, but lies about religious beliefs or venereal diseases may.
6. Minors / Underage
If either spouse was under the age of consent at the time of the marriage, the marriage can be annulled. However, if either spouse was 16 or older and had parental or guardian consent, the marriage is valid. Marriages involving individuals under 16 may also be valid if the individual is pregnant and has parental consent.
7. Prostitute or Felon
If your spouse did not inform you before marriage that they were an active prostitute or a convicted felon, you may annul the marriage.
8. Duress
If you were forced to marry due to fear or threats of serious bodily harm, the marriage may be annulled. However, the coercion must have occurred at the time of marriage.
9. Sham Marriage
If the marriage was entered for reasons other than the typical purposes of marriage—such as obtaining a green card or citizenship—the marriage can be annulled. This is a type of fraud annulment if one spouse was unaware of the other’s motives.
10. Child With Another
You can annul the marriage if your wife was pregnant with another man’s child at the time of marriage, or if your husband has a child with another woman within 10 months of the marriage.
Legal Effects of Annulment
Unlike a divorce, an annulment legally declares that you and your spouse were never married. However, this does not necessarily mean you will not receive assets or property division. If your marriage was voidable due to duress or fraud, you may still be entitled to a share of marital property. Additionally, a court may order child support and address child custody and visitation if you and your spouse have children together. Though your marriage is invalid, any children born during the marriage are 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.