Many times when it becomes obvious that a marriage is heading towards failure, the question arises whether it would be best to seek an annulment or a divorce. To answer that question, one must first understand how annulment differs from divorce, and the different remedies a court may award upon a divorce vs. upon an annulment.
Many people confuse the legal annulment with a religious annulment. A legal annulment is a determination by the court that the marriage never existed. It can only be granted in a limited number of circumstances that are very rare.
A very small number of marriages may be annulled because they were void ab initio—meaning they were never valid marriages. Those marriages include bigamous and polygamous marriages, incestuous marriages, and underage marriages. See Virginia Code Section 20-38.1. These “void” marriages are deemed to have never legally existed, even without a formal annulment from a court.
The second category of marriages which may be annulled are the so-called “voidable” marriages. Voidable marriages are presumed to be valid until proven otherwise. Annulment of these marriages requires a determination by the court that the marriage was not valid. Per Virginia Code Section 20-89.1, marriages are voidable in Virginia when:
- one of the parties (or both of them) did not possess the capacity to consent to the marriage,
- the marriage was entered into as a result of fraud or duress,
- one of the parties was impotent at the time of the marriage,
- one party had been convicted of a felony prior to the marriage and the other party did not know about it at the time of the marriage,
- the wife is pregnant at the time of the marriage with another man’s child without the husband’s knowledge,
- the husband fathers the child of another woman born within 10 months of the marriage without the wife’s knowledge, or
- either party had been a prostitute prior to the marriage without the other’s knowledge.
It is also important to follow the procedure outlined by the Virginia Code when getting married: you have to obtain a valid marriage license and hold a solemnization ceremony performed by a officiant licensed in Virginia, in that order. See Virginia Code Section 20-13. If you do not, your marriage is voidable.
When a marriage is legally annulled, the law holds that the marriage never existed. Therefore none of the protections offered to divorcing spouses under the Virginia Code can be applied—meaning the court cannot divide property or order spousal support. However, child custody, visitation, and child support can still be determined by the juvenile and domestic relations district court.
While it may initially seem appealing to seek an annulment when the emotional fallout from a failed marriage leaves one party wanting to walk away (both physically and emotionally), that is often not the best course of action legally.
Marriage is an institution that provides many legal benefits. Same-sex couples have been fighting for these protections for years. These benefits include the right to own a home as tenants by the entirety (a special protection that protects the property of married couples from creditors), the right to file taxes as “married filing jointly” which results in financial benefits, the right to make medical decisions for an incapacitated spouse, the right to Social Security benefits based on your spouse’s earnings—the list goes on. When a marriage is ended, these protections cease to exist.
A divorce in Virginia allows the couple to seek to maintain some of those benefits, and to obtain an equitable distribution of the assets acquired during the marriage. Marital assets include everything that was acquired by the couple during the marriage, which encompasses all assets of both parties, regardless of title. It is a common misconception that if a piece of property—be it a house, a car, a bank account—is titled in just the name of one spouse, it is not marital property. That is not true. Everything accumulated during the marriage is a marital asset and subject to division by the court. All real property, bank accounts, retirement accounts, pensions and personal property (cars, jewelry, electronics, etc.) can be valued and divided by the courts as part of an equitable distribution. Even in instances where one person was a saver and the other was a spender, the court can and will equitably divide assets. Most of the time, this is a 50/50 division or something very close to it. In the case of retirement assets and pensions, this can be financially significant even in shorter marriages.
The court can also order spousal support in divorce cases. When one party has been a stay at home parent, or sacrificed his or her career in support of the other party’s career, or where one party simply makes significantly more money than the other, the court can order monthly financial assistance in the form of spousal support (known as alimony in other states).
Courts can only award equitable distribution or spousal support where the parties have been married. An annulment would result in the marriage being a legal nullity, permanently extinguishing the possibility of either of these awards. Therefore, while an annulment may seem appealing in theory, the legal protections of a divorce should be pursued when they are available.
This was clearly illustrated by the case of MacDougall v. Levick, decided in February 2016 by the Virginia Court of Appeals. In that case, the parties thought they had gotten married legally in December 2002; however, neither party had secured a marriage license prior to the ceremony being held. After realizing their error, in January 2003 the parties obtained a marriage license and had it signed by the rabbi who performed the ceremony. However, they failed to have a second wedding ceremony, and neither husband nor wife was present when the license was signed. As discussed above, a marriage is not valid until a license is obtained and the marriage is solemnized by a person authorized to do so, in that order. In the MacDougall matter, the parties did not follow the proper steps.
Years after the (apparent) marriage of the parties in MacDougall, their relationship deteriorated. The parties negotiated a settlement agreement in 2009, and the wife filed for divorce in 2011. The divorce was then litigated over the course of three years, with legal fees totaling close to $1 million dollars. Prior to conclusion of the litigation, the husband was allowed to amend his pleadings to allege that the parties were never married. The Fairfax County Circuit Court agreed with the husband, finding that the parties were never married. Therefore no property could be divided and the wife was not entitled to spousal support, even though the parties had previously agreed to it in their settlement agreement. The Court of Appeals affirmed this ruling.
The MacDougall case illustrates both the importance of following proper procedures when getting married, and the benefits for many parties of a divorce over an annulment.
It bears mentioning that a legal annulment is not the same as a religious annulment (most commonly granted by the Catholic Church). If you want to seek a religious annulment, that can be done after your secular divorce is completed, and is done through your local parish and diocese. The first step would be to consult your parish priest.
When considering the possible dissolution of your marriage, it is best to consult with a family lawyer who can help you understand your legal options, and assist you with pursuing the best course of action for you and your family. The experienced attorneys at Livesay & Myers, P.C. can help you through this difficult process. From our five convenient office locations, we represent clients across Northern Virginia. Contact us to schedule a consultation today.
See also: Guide to Annulment in Virginia