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 filing a request with the court to 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 is seeking to have the court deem the marriage void or voidable from its beginning. During an annulment proceeding, the distinction between whether a marriage is void or voidable is generally the main focus.
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 the court to grant a divorce or annul the marriage of the parties. In both instances, the end result may produce obligations to pay money to an ex-spouse, divide property, or result in custody agreements regarding children. However, there are differences between an annulment and a divorce. The differences are briefly discussed below.
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 needs to get a formal declaration from the court indicating 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 for a void marriage, it is still best practice to speak with 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 location the couple resides.
In 2017, a Kansas court summarized a void marriage as “a marriage that is invalid from its inception, that cannot be made valid, and that can be terminated by either party 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 the marriage is a bigamous marriage. This means that at the time of the marriage, one of the spouses had another living spouse. Another common 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, certain characteristics of the individuals may also lead to a marriage being void. For example, if an individual lacks mental capacity, due to mental or physical illness or any other reason the spouse lacks ability to contract under law, the marriage will be void from its inception. Another example is the age of the parties. 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., no matter when the marriage 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 that this second marriage is void in 2016. Spouse 1 would then be required to pay back-maintenance for 2014-2016 since the second marriage is treated as never existing by law. Another example involves income tax filing status. If the parties filed using a married joint filing status, they must refile for all the years during the void marriage.
The other type of annulments is for voidable marriages. In this case, either spouse has the ability to void the marriage, but it is not automatically deemed void. Only one of the spouses may move for this type of annulment, and if neither party moves for annulment, the marriage may stand as valid. Unlike void marriages, a voidable marriage is not automatic and must be declared void for 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 is a mistake by one spouse, whether the mistake 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 marriage until the court declares an annulment. For example, a couple gets divorced in 2012, and Spouse 1 must pay Spouse 2 maintenance until 2017 or if Spouse 2 remarries. Spouse 2 remarries in 2014, and the second marriage is annulled in 2016 as a product 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 difficult to understand. Despite this difficulty, it is important to know that there are distinct differences between the two. This is why it is important to contact an experienced attorney when determining if an annulment is available, and if it is the best course of action for a couple to pursue when looking to dissolve a marriage.