Written by Tony Chiaramonte on 10/12/2020

What's the Difference Between Annulment and Divorce?

In the context of family law, the terms annulment and divorce are often used interchangeably to describe the dissolution of a marriage. While both of these processes end a marriage, the two terms are distinct, and each has a unique legal effect. 

Basics of divorce vs. annulment

The essential difference between divorce and annulment is this:

When a couple gets divorced, although they are no longer married to each other, each person is still recognized as previously having been married. 

When a marriage is annulled, it is as though the valid marriage never happened. The people involved are no longer married to each other, nor are they regarded as having been married.

Those who intend to end a marriage should know the difference between an annulment and a divorce. While divorces and annulments each have some procedural requirements that a couple must meet, divorces are far more common because there are limited grounds for annulment.

When can a marriage be annulled?

The legal grounds for an annulment vary slightly by state. However, in most states, a judge will declare a marriage null for one of the following reasons:

  • Bigamy – A bigamous marriage is one in which one of the spouses was already married at the time of the marriage.
  • Incest – An incestuous marriage is one in which the couple is too closely related. Again, the degree of relation that qualifies as incestuous varies by state.
  • Force – An instance where one partner makes a marriage happen through force, fraud, or coercion of the other partner.
  • Age – A marriage in which one or both of the spouses were not of sufficient legal age to marry. The legal marriage age depends on the state but ranges from 12 to 18. Some states allow minors to get married with parental consent.
  • Incapacity – A marriage in which one of the spouses was either under the influence of drugs, alcohol, or mental incapacity to enter into a marriage.

An annulled marriage can either be void or voidable. A void marriage is one that a state government will not recognize, even if both spouses consent to the marriage, notwithstanding the facts that make it void. It is as though the marriage was a nullity in the first place. In most states, marriages involving bigamy or incest are void marriages. 

A voidable marriage, on the other hand, is one that can be voided at the request of one of the parties involved. However, if neither spouse files an annulment case or raises a legal issue with the marriage, the government will recognize the marriage. Typically, marriages involving a party's age or mental capacity are voidable marriages.

The process of divorce

The legal procedure for obtaining a divorce is much easier than obtaining an annulment. However, family law varies by state, and each state has specific requirements to get a divorce. 

Most states are either considered "fault" or "no-fault" states. Some states allow for the filing spouse to choose either a fault or no-fault divorce. 

A no-fault divorce is one in which the filing spouse is not necessarily blaming the other spouse's conduct for the divorce. Grounds for a no-fault divorce may include irreconcilable differences, irreparable breakdown, or loss of affection. 

Typically, a spouse who files a no-fault divorce must live apart from the other spouse for a period of time before filing for divorce. This is referred to as a legal separation.

Fault-based divorces, on the other hand, require one spouse to prove that the other spouse was responsible for the deterioration of the marriage. While states differ on the specific grounds for divorce, some of the more common grounds include:

  • adultery
  • abandonment
  • domestic violence
  • imprisonment
  • cruelty
  • drug or alcohol abuse


Unlike a no-fault divorce, a fault-based divorce does not typically require the filing spouse to live apart from their spouse before filing. However, a married couple may need to satisfy a waiting period requirement, depending on state law.

If one spouse files a fault-based divorce, the other spouse may have one or more defenses. Defenses for a fault-based divorce include:

  • Collusion – When two spouses work together to fabricate grounds for a divorce. Typically, this defense comes to light when one spouse changes their mind.
  • Condonation – When the spouse filing for divorce knew of their spouse's adulterous behavior, forgave them, and resumed the marital relationship.
  • Connivance – When the spouse filing for divorce agreed to or participated in the adultery, or arranged for another person to seduce or have sex with their spouse.
  • Provocation – When one spouse provokes the other to act in a certain manner. For example, if one spouse threatened the other spouse, who then left the home, the spouse who made the threats could not claim that their spouse abandoned them.
  • Recrimination – When both spouses have engaged in conduct that could be grounds for divorce, neither can use the other's conduct as grounds for divorce.

In a situation where each spouse's conduct could be viewed as grounds for divorce, the court determines which spouse was less responsible. This legal process is called comparative rectitude.

Effects of divorce vs. effects of annulment

Both a divorce and an annulment end a marriage through a court order. Aside from the fact that an annulled marriage is treated as though it never existed, there are very few other differences. 

Thus, when a court enters a final order dissolving a marriage, either by divorce or annulment, the court will then determine issues of child custody, child support, spousal support (or alimony), and the division of property.

Most annulled marriages often only last a short time. In such a case, the court tries to leave each former spouse in the same position they were in when they entered the marriage. In many cases, this is a straightforward analysis.

However, for longer-term marriages that end in divorce or annulment, how the court divides the couple's assets can be much more complicated. 

Most states use the equitable distribution method when dividing a couple's assets upon divorce. Under an equitable distribution analysis, a court does not divide a couple's assets in half, but instead divides them according to what is "equitable." 

States that do not use the equitable distribution approach are community property states. In a community property state, all marital assets are split 50-50 in a divorce. 

Property division in divorce cases and annulments can be complex. Those considering ending a marriage should consult with a dedicated family law attorney for assistance and legal advice.

Working with a family law attorney

If you’re considering a divorce or wondering whether you can obtain an annulment based on one of the reasons mentioned above, contact a knowledgeable divorce attorney. Civil annulments and divorces are often extremely complicated, and those considering ending a marriage will benefit from the legal services of an experienced attorney.

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