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Divorce: Annulments are Rare

On Behalf of | Apr 29, 2015 | Divorce

Tonight’s post on Annulments was written by one of our Lawrenceville divorce attorneys, Jennifer McCall.

We often have clients ask if they can be granted an annulment. In Georgia, annulments are rare.

Proving that you meet the legal grounds for having a marriage annulled is difficult. Procedurally, you have to follow, almost identically, the same steps and rules as if you filed for divorce. The end result is almost identical to that of a divorce.

Why, then, would a person want an annulment instead of a divorce? Some people feel that divorce carries a stigma and they want to avoid it. Some people will ask for a religious annulment, one granted by their church, and will also want the civil annulment to go along with it.

In Georgia, the Superior Court may grant an annulment to declare a marriage void by law. The annulment returns the parties to their original status before the marriage, as if it never happend. An annulment may not be granted, however, in instances when children were born as a result of the marriage or a child is going to be born as a result of the marriage.

For a marriage to be void and an annulment granted, the marriage must have been one that is prohibited by law. This means that the marriage was not actually valid at its inception.

For example, if one or both of the parties was mentally incompetent at the time of the marriage ceremony, then an annulment may be granted. Another reason would be if one or both spouses was underage at the time of the marriage and did not obtain the consent of a parent or guardian.

At this moment in history, Georgia doesn’t recognize same-sex marriages, bigamous marriages, or incestuous marriages so if you’ve married someone of the same sex, someone who’s already legally married to another person, or someone who is too closely related to you, then an annulment may be granted.

An annulment may also be granted if you were forced into the marriage. Be careful though. If you are aware that grounds exist for an annulment, but you choose to stay married, the court may find that you’ve ratified the marriage and you won’t be granted an annulment. For example, if you entered into the marriage because of fraud but stay married, then you’ve waived the opportunity to have your marriage annulled.

If the party wishing for the annulment is incompetent or a minor, the party’s “next friend” may file the petition for annulment. For example, if the marriage involved a minor without consent of the parent or guardian, the minor party’s parent or guardian may file a petition for annulment for the minor.

In many states, courts do not equitably divide property or award alimony because there was no valid marriage to begin with. In Georgia, however, the courts can equitably divide property and debts as well as award temporary alimony. Georgia will not, however, award permanent alimony in cases of annulments.

It is best to talk with an attorney to find out whether or not you have the grounds to be granted an annulment. Even if you are not eligible for an annulment, you can still file for divorce.

Here’s an example of an annulment not being granted. The Manely Firm successfully represented a client whose spouse tried to have their marriage annulled. The parties were both female at the beginning of their relationship, but at the time of the marriage, one spouse had been sexually reassigned as a male, with the encouragement and endorsement of the other party. The other party tried to have the marriage annulled on the grounds that it was a same-sex marriage. 

The court denied the annulment and granted a divorce instead, setting legal precedent and recognizing the validity of transgender marriage.

So, annulments aren’t for everyone.  In fact, they are incredibly rare.

Jennifer McCall