WHAT IS THE DIFFERENCE BETWEEN A DIVORCE AND AN ANNULMENT?
Under Kansas state law, a marriage may be terminated by either a divorce or annulment. By filing for divorce, an individual is essentially requesting that the court terminate the marital relationship. There are several grounds an individual can use to file for divorce. On the other hand, when filing for an annulment, the individual seeks to have the court declare the marriage void or voidable from its inception. During an annulment proceeding, the distinction between whether a marriage is void or voidable is generally the primary focus.
Annulments
While different forms of terminating marriage, both divorces and annulments, have similar processes when going through court proceedings in Kansas. First, a party initiates either process by filing a petition with the court – the petition either requests that the court grant a divorce or annul the parties' marriage. In both instances, the result may entail obligations to pay money to an ex-spouse, divide property, or enter into custody agreements regarding children. However, there are differences between an annulment and a divorce. The differences are briefly discussed below.
Voidable Marriages
The other type of annulments is for voidable marriages. In this case, either spouse can void the marriage, but it is not automatically deemed void. Only one spouse may move for this type of annulment, and if neither party moves for annulment, the marriage may remain valid. Unlike void marriages, a voidable marriage is not automatic and must be declared void by the court. As the Kansas court stated in Matter of Marriage of Kidane & Araya, “a voidable marriage is a marriage that is initially invalid, but that remains in effect unless terminated by a court order.
Generally, the grounds for a voidable marriage are a mistake by one spouse, whether the error is honest or induced by fraud. However, the mistake must be of a material fact – meaning it is a fact that would justify rescinding any other type of contract. This can include a mutual mistake by both parties, lacking the intent to marry, like a marriage caused by extreme intoxication.
Voidable marriages are generally recognized as marriages until the court declares an annulment. For example, a couple divorced in 2012, and Spouse 1 must pay Spouse 2 maintenance until 2017 or until Spouse 2 remarries. Spouse 2 remarries in 2014, and the second marriage is annulled in 2016 as a result of a mistake. Unlike a void marriage, Spouse 1 will not be liable for maintenance not paid in 2014 and 2015 because the marriage was legally recognized until it was annulled by the court in 2016. However, Spouse 1’s obligation to pay maintenance will commence in 2017 because the marriage is invalid from the date of the annulment. In addition, spouses will not have to refile their taxes for the years during the voidable marriage. However, the spouses must not file as married after the court grants the annulment.
The legal distinctions between an annulment and a divorce can be challenging to understand. Despite this difficulty, it is essential to know that there are distinct differences between the two. This is why it is important to contact an experienced attorney to determine whether an annulment is available and whether it is the best course of action for a couple to pursue when seeking to dissolve a marriage.
Void Marriages
Under certain circumstances, a marriage is automatically void from its inception. If a marriage is void from its inception, that means the parties never assumed marital rights or responsibilities. When a marriage is deemed void, there is no requirement that either party obtain a formal court declaration stating that the marriage is void. On the other hand, if a marriage is deemed voidable (discussed below in more detail), the court must give a formal declaration indicating the marriage was voidable. While an individual does not need a court declaration to establish a void marriage, it is still best practice to consult an attorney and seek clarification from the court. Either of the spouses or any party with an interest in seeing the marriage invalidated may seek an annulment for a void marriage. These other parties could include a party seeking to marry one of the spouses, any family members, beneficiaries of a spouse’s will, or even the district attorney in the couple's location of residence.
In 2017, a Kansas court summarized a void marriage as “a marriage that is invalid from its inception, that cannot be made valid, and either party can terminate that without obtaining a divorce or annulment.” Matter of Marriage of Kidane & Araya. There are several reasons a marriage can be found void, with one of the most common grounds being that it is bigamous. This means that at the time of the marriage, one of the spouses had another living spouse. Another typical example of a void marriage is if the marriage is incestuous in nature, meaning the parties had some other form of familial legal relationship which prevented them, under law, from ever being husband and wife.
In addition, specific characteristics of the individuals may render a marriage void. For example, if an individual lacks mental capacity, due to psychological or physical illness or any other reason, the spouse cannot contract under law, and the marriage will be void from its inception. Another example is the parties' ages. If one of the parties is under the age of 16, the marriage is void unless there was parental consent or other limited exceptions.
Once a marriage is deemed void, it is considered to have never existed in every legal context, regardless of when it is discovered to be void. To illustrate, imagine a couple divorces in 2012, and Spouse 1 is required to pay maintenance until 2017 or Spouse 2 remarries. Spouse 2 remarries in 2014, but it is discovered in 2016 that this second marriage is void. Spouse 1 would then be required to pay back-maintenance for 2014-2016, since the second marriage is treated as never having existed by law. Another example involves income tax filing status. If the parties filed under married joint filing status, they must refile for all years during the void marriage.
What is a void marriage?
Matter of Marriage of Kidane & Araya, 389 P.3d 212 (2017)
The issue in this case is what is a void marriage. A void marriage is a marriage that is invalid from its inception, that cannot be made valid, and either party can terminate it without obtaining a divorce or annulment.
In this case, Kidane came to the US from Ethiopia in 2012 and married Araya in Las Vegas in 2013. On March 5, 2015, Araya filed a complaint to annul the marriage, stating that Kidane was loving during the courtship, but stopped after the marriage because he said, “he did not need her anymore because he had his green card.” The court dismissed the claim. On March 6, 2015, Kidane filed for divorce based on incompatibility, and Araya filed a counter-petition for annulment, alleging the marriage was void because Kidane had been married to someone else at the time he married Araya. The testimony at the bench trial was highly conflicted, and each witness faced credibility issues. Tesfaye claimed to have been married to Kidane in a traditional Ethiopian wedding in 2011. Kidane alleges it was just a celebration and not an actual wedding. Tesfaye introduced Kidane to Araya in October 2012, shortly after he arrived in the US. Tesfaye had remarried in the US at the time of the trial. There was conflicting testimony about their living arrangements, and it is unclear whether Kidane and Araya lived together before or after the marriage. At some point, Kidane told Araya he was already married to Tesfaye, which led to her decision to file for annulment in March 2015. The court granted Araya’s request for an annulment.
A void marriage is a marriage that is invalid from its inception, that cannot be made valid, and either party can terminate it without obtaining a divorce or annulment. Kansas state law allows a court to grant an annulment if a marriage is void for any reason, including if it was induced by fraud. At trial, there was sufficient evidence to conclude that the marriage was a sham, meaning that the parties got married without intending to live together as husband and wife. While the Kansas legislature has never expressed whether sham marriages are void, the court found the sham marriage was void because it was for an illegal purpose – to obtain a green card fraudulently. The sole purpose of the marriage was to commit fraud on the immigration authorities who issue green cards. The court found persuasive that other states had allowed annulments where the facts supported a finding that the marriage was a sham solely for immigration-related purposes. The court found that the parties did not commit fraud against one another, as both knew the reason for the marriage from its inception. Instead, the fraud in this case was on the federal government by both parties.
The decision was affirmed. The marriage was a sham and therefore voidable/void. An annulment was proper to find the marriage was not valid at its inception. The district court judge did not err in granting the annulment.