What is the Difference Between a Divorce and an Annulment of a Marriage?

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Hello and welcome to 60 Seconds with Sergio. I am your host, Sergio Cabanas, Attorney-at-Law here in Florida. Thank you for joining me today.

Today’s question is: “Sergio, I’ve heard of instances of people being able to go to court to invalidate or annul a marriage, instead of getting a divorce.”

“What’s the difference between a divorce and an annulment or invalidation of a marriage?”

Well, let’s try to crystalize the definition of each term. A divorce is basically a termination of a valid marriage where the spouses have marital rights. Such as to marital assets, and potentially alimony and so forth.

In contrast, an annulment is the legal process of invalidating an existing marriage, as if it never existed. And, if the marriage never existed, that means that neither “spouse” has any marital rights, such as to marital property or alimony. So, Florida law imposes a presumption.

A presumption that, if the parties, abided by the laws of the place where the marriage ceremony took place, chances are the marriage will be considered to be valid. And therefore, the parties must undergo a divorce in order to terminate the marriage. Versus an annulment. For example, if the marriage actually took place in Florida, any marriage that was properly licensed, performed, and recorded, is presumed to be valid.

And therefore, the party that wants to challenge the validity of the marriage has a burden to overcome this presumption with evidence, showing that the marriage was not valid.

So, how is it possible to invalidate a marriage?

Well, it comes down to whether or not the marriage is considered to be void versus voidable. A marriage is considered to be void, or therefore not valid, if the defect that’s causing the question as to the validity of the marriage, cannot be fixed or cured in any way. The two biggest examples of such an instance is where the marriage, for example, is bigamous or there is incest.

On the other hand we may have a voidable marriage, which means that there is a technical defect with the marriage at the time the ceremony was performed, but that defect could be cured or fixed in some manner.

The best examples of a voidable marriage is where the parties lacked mental capacity at the time of the ceremony, and/or were underage at the time of the ceremony. In those cases, the non-offending party has the option of simply accepting the marriage, once that defect was cured.

So, for example, if one of the parties lacked mental capacity at the time of the marriage, but has since regained mental capacity after the marriage, that person can simply accept the benefits of the marriage or choose to invalidate it.

So, I hope this short video provided you with some guidance over a very interesting and complicated area of the law.

Thank you again for joining me today. And as always, stay informed so you can stay strong.

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Sergio Cabanas, Esq. | Family Law Attorney | Cabanas Law Firm

Sergio Cabanas, Esq. founded the Cabanas Law Firm in 2006 and provides Divorce and Family legal services, as well as Estate Planning, to ensure his clients have planned for their newly single life and are protected after their divorce. He began his career in law in 1992 as a prosecuting attorney at the Broward County State Attorney’s Office, then continued his litigation track as an insurance defense attorney defending medical professionals against medical malpractice claims and expanded into disability and life insurance claims. Sergio is a Certified Mediator registered in the Supreme Court of Florida and a frequent speaker in the community about the importance of Estate Planning to keep families out of probate court and to prepare essential instructions in the event of disability or incapacity.