Saturday, December 13, 2008

Annulment vs divorce, and the Arrogance of Memory

After writing Annulment versus Divorce, I noticed someone came to this blog with the following query: "what are the benefits of annulment vs divorce?." Which lead me to run the same query and to a change to my earlier article. In this post, I am going to examine some of the benefits of annulment and I get to chastise myself in a small way:

This blog reminds all too often that there is much to be learned and not to rely wholly on my memory. Ah, the penalties of age!

The search lead to Yahoo! Answers and Whats the social opinion about annulment vs divorce? ". The was the winning answer. I find it unsatisfactory as a lawyer but it was not a law question, was it?
Socially, both are viewed as negative but perception of divorce is worse. People often cast judgement without first knowing circumstances as is the case with divorce. While both are viewed as a failure, one kind of 'never happened'.

Since your question is directed to men I can say without a doubt that if given the option she should have her marriage annulled instead of divorce. (Unless he is financially loaded and a divorce settlement benefits her, lol)"
This answer did not get any votes, but from my lawyer's viewpoint is the best answer:
Because of the reasons by which an annulment is granted, I view divorce as far worse.

Usually annulments are granted if there is fraud (consent to the marriage was based on fraud), marriage is not consumated (sic), parties are related or too young to consent to marriage, one of the parties is already married (bigamy), or mental incompetence. The marriage was never legal to begin with so it is annulled.

A marriage that is perfectly legal but the parties can't just work it out ends in divorce. For me it usually means that people really didn't think about the implications of being married. I'm not saying this applies to all marriages. I do believe it's ok to divorce if you are being abused, cheated on or your spouse has an addiction.

IF she can get it annulled, then get it annulled. But remember she may need to meet certain criteria for that to happen. Make sure to consult with a lawyer in your country.
Next I landed on an immigration discussion board. While the discussion degenerates into the usual Internet white noise, it does the issue of annulment as a legal matter and as a personal one. It reinforces my point that annulment requires fraud but it shows me how annulment gets bandied about the Net.

Now, about that arrogance of memory, I found Dissolving the Marriage: Divorce v. Annulment from The New York Divorce Report. This paragraph made me think to re-read the annulment statutes:
A party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.
I am thinking if Indiana had that sort of statute, then things might be a bit different for annulment in Indiana. Here comes the chastising.

I then looked at the statute again (which is a lot quicker and easier with the Internet and a cable modem). I have not looked at the actual statutes for several years now. It appears that my memory forgot about this one:
IC 31-11-10-4
Sec. 4. An action to annul a voidable marriage under this chapter must be conducted in accordance with IC 31-15.
And what is IC 31-15? Here it is: ARTICLE 15. FAMILY LAW: DISSOLUTION OF MARRIAGE AND LEGAL SEPARATION. I shall see if there is any case law interpreting this statute and report back. I must take the view now that there will be a presumption of a 50-50 split in the property (which does satisfy my earlier correspondent to keep the fraudster from profiting from her fraud).

Which means I at best overstated the argument that annulment does not provide for division of marital property and at worst I was plain wrong about the problems of property division. For that argument I relied upon my memory and therein lies what I have begun to call the arrogance of memory.

I still stand - without relying on memory alone here - on the point that for legal purposes annulment presents greater problems that does dissolution of marriage in Indiana. I add that since it strikes me that some of these discussion boards may have members from states where fault must be proven in divorce as well as in annulment cases. (By the way, for how an annulment statute can differ between states, compare this case with Indiana's current statute). I can do nothing about whatever social stigma may attach these days to divorce. I can only deal with the legal issues.

Remember that Indiana has only two grounds for annulments: Incapacity to marry because of age or mental incompetence (IC 31-11-9-2) and Fraud (IC 31-11-9-3). Compare this with what The Georgia Family Law Blog writes in Annulment vs. Divorce or with Texas. (I cannot find a state for Divorce or Annulment? from Bizymoms which scares the devil out of me - there are things mentioned that just do not apply to Indiana. I suspect that it is true of other states. Still, it is interesting to see the differences between Indiana and other states.)

Other than proving one's grounds for annulment, there are defenses to the annulment making annulment a more difficult proposition. (Again, these do not exist under our dissolution of marriage statute). Including this statutory defense:
IC 31-11-10-2
Action by victim of fraud; defense
Sec. 2. ***
(c) It is a defense in an action brought under this section that, after the discovery of the alleged fraud, the alleged victim continued to cohabit with the other party to the marriage.
I had to go to Colorado to find this but it was worth the effort with Google:

Many people assume that a Colorado annulment is simply an easy way to end a brief marriage. The reality is that a declaration of invalidity of marriage (the legal term for annulment in Colorado) is a rarely-used procedure, and thanks to no-fault divorces, it is seldom easier than obtaining a Colorado divorce (dissolution of marriage). Seeing celebrities like Britney Spears annul her Las Vegas marriage after only a day (not the Kevin Federline marriage, but the one to her high school friend) only fuels those beliefs.

From a practical perspective, there is little difference between an annulment and a dissolution in Colorado. The legal effect is that the marriage never happened, which may benefit those who would rather avoid a Colorado divorce for religious reasons, or perhaps to reinstate benefits or payments lost when one party marries, such as maintenance or military medical benefits.

Substitute Indiana for Colorado and it says almost everything I have been trying to say about annulment in Indiana.

One thing I did learn is that I thought I priced my annulments high, but nothing like the fee here. (I differ strongly on this site claiming that the hardest part is getting the paperwork filed. No, here the hard part comes when you start presenting evidence supporting your claim of fraud or your other ground for annulment.)

If after reading this post and the other posts I have archived under "annulment", you still think you have a case for annulment then give me a call.

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