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Tag: annulment

Can I petition for annulment if my husband already filed for dissolution of marriage?

I will answer this question based up on the law of the state of Utah, which is the jurisdiction in which I practice divorce and family law.

Yes, you can, IF you qualify for an annulment. If your spouse files for divorce, you can countersue for annulment IF, and only if, you qualify for an annulment.

Before we go any further with this question understand this (because many people don’t understand this): divorce or annulment is not an option for everyone. Some people who are married cannot quality for an annulment. All valid marriages can be terminated by divorce. Not all marriages can be annulled.

What factors must be met to qualify for annulment? Black’s Law Dictionary ((11th ed. 2019), Bryan A. Garner, Editor in Chief) explains it this way:

An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution. Although a marriage terminated by annulment is considered never to have occurred, under modern ecclesiastical law and in most states today a child born during the marriage is not considered illegitimate after the annulment.

To obtain an annulment one must establish that the marriage was void from its inception. While a divorce ends a marriage, an annulment usually has the effect of declaring that no marriage occurred and so it is effective retroactively, meaning it never happened as a matter of law.

One cannot obtain an annulment except on the grounds recognized by law for an annulment. There are different grounds in different jurisdictions, but some of the common grounds are: fraud, coercion, bigamy (already married to someone else at the time of the second purported marriage), being under the age of consent, marriage between close relatives (parent and child, siblings, in some jurisdictions, first cousins), mental incapacity, intoxication, knowing one is infertile but concealing the fact at the time of the marriage, being impotent and concealing that at the time of the marriage, intoxication, refusal to engage in sexual intercourse, misrepresentation as to religion, having a sexually transmitted disease at the time of marriage, and the woman was pregnant by another man at the time of marriage).

Utah Family Law, LC | divorceutah.com | 801-466-9277

Eric Johnson’s answer to Can I petition for annulment if my husband already filed for dissolution of marriage? – Quora

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Which is more difficult for children: parents getting a divorce or parents getting an annulment?

Both result in Mom and Dad no longer living together with their children.

Divorce ends a marriage, and annulment results in a legal and religious ruling that the marriage does not exist and never did. If you were curious, modern law has been passed by the legislatures in most, if not all (I haven’t bothered to research that question), so that children of annulment are not made illegitimate by the fact that their parents marriage was annulled.

In my opinion, I don’t believe the difference between a divorce or annulment are distinctions that most minor children would appreciate or understand. The effects of divorce and annulment are, for all intents and purposes, the same on minor children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Which-is-more-difficult-for-children-parents-getting-a-divorce-or-parents-getting-an-annulment/answer/Eric-Johnson-311

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Can I get an annulment instead of a divorce?

Many people call me asking about whether they can get an annulment instead of a divorce. Their reasons are almost always the same: “I would prefer to say that I am not divorced.” 

Although the stigma of divorce is not nearly as great as it was a generation or two ago, there are many people who still would prefer to say they are not divorced. Others may have religious reasons for seeking an annulment over a divorce. And there are some situations where divorce may disqualify someone from receiving an inheritance or similar benefit. 

I completely understand the desire to end a marriage without divorce.  

The problem for most people who want an annulment over a divorce is that there are fewer and more particular grounds for annulment than there are grounds for divorce. Otherwise stated, while some grounds for divorce may also be grounds for annulment, just because one might have grounds for divorce does not mean one also has grounds for annulment. 

This, from AmJur2d, § 1 (Annulment of marriage, generally), makes several important points:  

By definition, an annulment is a declaration that a purported marriage never existed. It is a judicial determination to set aside a marriage that was invalid at its inception because of some defect existing at the time of the marriage.  

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A marriage should not be set aside lightly, and annulments of marriage are disfavored in the law. 

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An annulment is also to be distinguished from a divorce in that as a general rule an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce ordinarily is for causes arising after the marriage. 

In Utah, where I practice divorce and family law, this is the statute that governs an action for an annulment of a marriage: 

Utah Code § 30-1-17.1.  Annulment — Grounds for. 

A marriage may be annulled for any of the following causes existing at the time of the marriage: 

(1) When the marriage is prohibited or void under Title 30, Chapter 1, Marriage. 

(2) Upon grounds existing at common law. 

First, we will cover common-law grounds for annulment. The Utah Code does not identify what the common law grounds for annulment are. It is hard to find a “master list” of common law grounds for annulment, but here’s what I was able to find generally: 

  • Failure to consummate marriage; refusal of sexual intercourse 
  • Incapacity based on age (under age of consent) 
  • Lack of intent to enter into binding marriage 
  • Marriage induced by fraud 
  • Prior subsisting marriage 

Next, we will cover the statutory grounds for annulment (Utah Code § 30-1-17.1. Annulment—Grounds for). What kinds of purported marriages are prohibited or void? 

Incestuous marriages (Utah Code Section 30-1-1) 

  • When there is a spouse living, from whom the individual marrying has not been divorced; 
  • When an applicant is under 18 years old, unless the applicant: 
    • is 16 or 17 years old and obtains consent from a parent or guardian and juvenile court authorization in accordance with Section 30-1-9; or 
    • lawfully marries before May 14, 2019. 

And there is this statute that deals with one aspect of annulment: 

Utah Code § 30-1-17.  Action to determine validity of marriage — Judgment of validity or annulment. 

When there is doubt as to the validity of a marriage, either party may, in a court of equity in a county where either party is domiciled, demand avoidance or affirmance of the marriage, but when one of the parties was under 18 years old at the time of the marriage, the other party, being of proper age, does not have a proceeding for that cause against the party under 18 years old. The judgment in the action shall either declare the marriage valid or annulled and shall be conclusive upon all persons concerned with the marriage. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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True or false: Better to divorce than have a miserable life.

This blog post is in response to this question: 

I don’t think it’s bad to get a divorce. I think it’s more unhealthy to have miserable lives. — Ginger Wynn. What are your thoughts on this statement? 

This statement tries to express a valid point, but it does so in a logically confused way. 

The statement “I don’t think it’s bad to get a divorce. I think it’s more unhealthy to have miserable lives” falsely presumes that divorce will cure or prevent what makes a dysfunctional (or worse) marriage dysfunctional.  

Sometimes a marriage is so toxic and harmful as to require termination. In such cases divorce is not only justified, but necessary.  

Sometimes the trouble one or both spouses is suffering in a marriage can be remedied by divorce.  

Sometimes the trouble a marriage is causing one or both spouses can be remedied by divorce.  

But not always.  

Sometimes the solution is “mend it, don’t end it”; more often than you’d think the cure for dysfunction and discord in a marriage is staying married and working on improving the marriage, not destroying it.  

Far too often I see people divorce in the false belief that their spouses/their marriages are making them miserable only to learn, after the damage is done, that their spouses/their marriages are not the cause(s) of their troubles. They realize that divorcing only compounds their suffering. They consequently become even more miserable.  

So here is what I submit is a more accurate statement: It is not bad to get a divorce when you truly have no better alternative.  

Don’t divorce unless divorce you need to. Know that “mend it, don’t end it” is not the answer before you seek a divorce.  

Utah Family Law, LC | divorceutah.com | 801-466-9277

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