What Is The Difference Between A Divorce And An Annulment?
In Kansas, a marriage may be terminated by either divorce or annulment. Filing for divorce is in essence filing a request with the court to dissolve, or terminate, the martial relationship of the parties. An individual can file for divorce on a number of different grounds. In contrast, when filing for an annulment, the party requesting the annulment, or the Petitioner as they are formally referred to, is requesting the court deem the marriage void, or voidable, from inception. The distinction between whether a marriage is void, as opposed to voidable, is often the key focus on an annulment proceeding. As the court is asked to determine whether facts give rise to a finding that the marriage was, in essence, invalid from the beginning.
Both divorces and annulments follow similar processes when proceeding through the court system in Kansas. A party initiates either process by filing a Petition with the court. The Petition request to Court either dissolve the marriage of the parties (e.g., divorce the parties), or annul the marriage of the parties. The end result may produce obligations to pay maintenance to an ex-spouse or partner, divide property of the parties, or result in custody agreements concerning children being entered. However, there are also key differences between an annulment and a divorce. These differences are reviewed in more detail below.
Certain circumstances render a marriage automatically void. As the name implies, a void marriage is automatically void from inception. That is, if a marriage is void from inception, that means the parties never at anytime assumed marital rights or responsibilities. A marriage being deemed void, as opposed to voidable, is also important as in instance where a marriage is found to be void from inception, there is not a requirement that either party get a formal declaration from a court indicating as much. Phrased differently, in instances when you have a voidable marriage (discussed in more detail below), as opposed to a void marriage, you have to go to Court to receive a formal declaration from a judge indicating the marriage is and was indeed voidable. Where again, in contrast, if the marriage is void, neither part necessarily needs to go to court to get a legal declaration to support same. However, it is still best practice, if one has a void marriage, and they are concerned about legal rights or responsibilities forming, to speak with any attorney and seek clarification from the court. Further, either the spouses or any party with an interest is seeing the marriage invalidated may seek an annulment for a void marriage. These parties can include a party seeking to marry one of the spouses, family members of either spouse, beneficiaries of a spouse’s will, or even the district attorney where the couple resides.
One Kansas court recently summarized well what it means for a marriage to be void by stating, “[a] void marriage is 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, No. 114,986, 2017 WL 128993, at *1 (Kan. Ct. App. Jan. 13, 2017). There are different reasons a marriage can be found void, although one of the more common ground is because the marriage is found to be a bigamous marriage. Meaning one of the parties, at the time of entering into the purported marriage, had another living spouse. Another reason a court will find a marriage void, as opposed to voidable, is if it is incestuous in nature. Meaning the parties who married had some other form of familial legal relationship which prevents them, under law, from ever being husband and wife.
Characteristics of the individuals may also lead to the marriage being void. If an individual lacks mental capacity at the time of marriage, the union will be void. This incapacity may be due to mental or physical illness, or any other reason the spouse lacks ability to contract under law. The age of the party may also make the marriage void. If the party is under the age of 16, the marriage is void unless a pre-marriage investigation was performed by the court. If the party is 16 or 17, the marriage is void without parental consent or other limited exceptions.
Void marriages are considered to have never existed in virtually every legal context. Thus, no matter when the marriage is discovered to be void the law will treat the marriage as having never existed. This is known as “relating back” to the date of union. For example, assume a couple divorces in 2012 and Spouse 1 is required to pay maintenance until 2017 or the remarrying of Spouse 2. The Spouse 2 remarries in 2014, but it is discovered this second marriage is void in 2016. Spouse 1 would be required to pay back-maintenance for 2014 through 2016, because the void marriage is treated as never existing by the law. Another example is the context of income tax filing status- both spouses must refile for all years they used a “married” filing status during a void marriage.
The second variety of annulment results in a voidable union. In this instance, either spouse has the decision to void the marriage. But it is not automatically deemed void, as is the case when a marriage is indeed void as discussed above. No parties outside either spouse may move for this type of annulment, and the marriage may stand if neither party wishes to move for an annulment. Unlike void marriages, this type of annulment is not automatic and the court must declare these marriages void. As one local Court appropriately described it, “a voidable marriage is a marriage that is initially invalid but that remains in effect unless terminated by court order. Matter of Marriage of Kidane & Araya, No. 114,986, 2017 WL 128993, at *1 (Kan. Ct. App. Jan. 13, 2017)
Generally speaking, the grounds for this type of annulment are a mistake by one spouse, whether the mistake is honest or induced by fraud. The mistake must be one of a material fact—one that would justify rescinding any other contract. This can also include the “mutual mistake” of the parties in that they lacked the intent to marry, such as caused by extreme intoxication.
Voidable marriages generally do not relate back as void marriages do. Thus, the law will recognize the marriage until the date the court declares the annulment. Looking back to the couple divorce in 2012, with the obligation of Spouse 1 to pay Spouse 2 maintenance until 2017 or re-marriage of Spouse 2. Spouse 2 remarries in 2014, and the marriage is annulled in 2016 as being the product of a mistake. Unlike a void marriage, Spouse 1 is not liable for maintenance not paid in 2014 and 2015, because the law recognizes that the marriage existed up until it was annulled by the court. Spouse 1’s obligation to pay maintenance for 2017 will re-engage, however, as the marriage is invalid from the date of annulment going forward. The filing status of the spouses is also treated differently when the marriage annulled is voidable, rather than void. The spouses do not need to refile for years prior to the annulment, but must refrain from filing as married following the decree of the court.
The legal distinctions between annulments and divorces can at times seem confusing. However, there are sharp differences between the two that are important to be aware of. For this reason, it is important to contact capable legal counsel when determining if an annulment is available, and if it is the best method of dissolving a particular marriage.
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