Monday, December 1, 2008

Annulment versus Divorce

Recently, I had a little e-mail dialog on this subject and I think it is worth repeating here. The sender, a non-lawyer, wrote the following:

As far as annulment vs divorce; It comes down to a matter of principals. Women that go around pointing the finger at the most convenient target should be held accountable for doing so.

Being married affords the person who concealed material facts relevant to the marriage, a claim to assets and other property that they would have no claim to had the fraud not taken place. To me, this situation would be no different than allowing a criminal to keep the proceeds of his/her crime. Our courts seize fruit of crimes every day.
Here is my response.
Frankly, you gave me a bit to think about. I never understood the interest in annulment as a lawyer. Here are the reasons:
  • Annulment requires proving a case while divorce merely requires asserting that the marriage is irretrievably broken. Don't prove the elements of annulment and you remain married until you file for a dissolution of marriage.
  • Annulment voids the marriage which means you were never married. Annulment does not really contemplate a long time between marriage and filing the petition for annulment. If it did, then it would deal with the division of property and debts accumulated during the marriage. If you think that does not matter or is easy to deal with, then I suggest you check out the cohabitation articles on my blog. PITA only begins the description. The divorce statute does provide for a division of debts and property.
What I have missed the is emotional appeal of annulment. I can see why it would appeal - as a quasi-punishment for fraud. I still think it would be unsatisfactory as revenge for the general reasons described above.
Understand annulment differs wholly from divorce and is not merely divorce with a different name. Another technical problem exists for those married for any length of time besides the problems of dividing property. The defending party has all the defenses for any other type of lawsuit - including one called laches. I do not seeing winning an annulment case where the discovery of the grounds became known years before the filing of the annulment petition. And what do you get if you lose the annulment case? I suggest you file for divorce, raise the child's paternity in the divorce case, and get out of the marriage.

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