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Should I Get a Divorce or an Annulment? What’s the Difference?

Should I get a divorce or an annulment? What is the difference?

New clients often ask whether they should seek a divorce or an annulment. The answer, unsurprisingly, is, “it depends.”

First, it is important to understand the difference between a divorce and an annulment.  One way to remember the distinction between them is this: with a divorce, a court is saying the marriage is over; with an annulment, a court is saying the marriage never existed in the first place.

How do you know if you are eligible for one or the other or both?  A marriage can be ended by a divorce on either no-fault or fault grounds.  By far the most common choice in divorce is the no-fault ground of insupportability.  In contrast, an annulment requires proof of certain circumstances before a court will turn back the clock and erase a marriage—essentially, you must show that the marriage is “voidable” under the law.  It is also important to remember that even if you and your spouse agree to get an annulment, you will still need to prove that you are legally entitled to an annulment by proving that the marriage is voidable.

A marriage can be voidable under Texas law for a variety of reasons, including where spouses were underage or intoxicated when they married; impotency is another ground for annulment, as is fraud, mental incapacity, and more.  Be careful though!  Each of these grounds presents traps for the unwary—there are time limits and circumstances in which a spouse can be deemed to have validated an otherwise voidable marriage.  If you think your marriage could be voidable, seek out an experienced family law attorney who can help you evaluate your individual circumstances.

Why choose an annulment over a divorce, or vice versa?  People seek annulments for understandable reasons.  If you are eligible for an annulment, those reasons can be self-explanatory: if the marriage was entered into by fraud or because of mental incapacity, a spouse would clearly want relief that simply undoes what should not have been done.  Other reasons people seek an annulment often relate to seeking a clean slate: some people don’t want the “stigma” of being divorced, or they want an annulment for religious reasons.  The downside is that it can be hard to prove the basis for an annulment compared to obtaining a divorce, and an annulment can affect your rights to certain benefits differently than a divorce would.

One important note: if you and your spouse have children together, the party seeking the divorce or annulment must also bring a “Suit Affecting the Parent-Child Relationship,” or SAPCR.  A SAPCR is required in either a divorce or an annulment involving children of the marriage and will determine the parties’ rights and responsibilities regarding the children.  But the many details and requirements involved in a SAPCR are a topic for another time and another blog post.

The decision to end a marriage can often be complex, and the options available to carry out the end of a marriage can be equally confusing.  Divorce, annulment, and SAPCRs have numerous legal requirements that can and will impact your future rights and responsibilities.  A lawyer who specializes in family law can help guide you through the legal maze while protecting you from the pitfalls along the way.

If you have questions about any of these issues, contact our law office at (214) 692-8200.