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Originally Posted On: https://www.attorneys-arizona.com/blog/divorce-vs-annulment-az/

 

The current divorce rate sits at 2.3 per 1,000 people. [1] While this number may not seem significant on its face, it can become much more impactful when it affects you directly. In fact, it is likely that you or someone you know may be experiencing the prospect of ending a marriage.

If a divorce is something you are considering for yourself, you may also understand how difficult of a situation it can be. Divorce is often a major event in the lives it affects. However, you may be eligible for another option. If you’ve heard of couples eloping in Vegas, you may also have heard about annulments. However, while annulments and divorce can overlap in a few ways, in many others, they are quite different.

Learning more about both categories can help you make the right decision for your future. Knowing the differences between a divorce and an annulment—and making the best choice between them—might make all the difference in getting your life back on track smoothly.

Divorce Overview

The state of Arizona, like many other states, is a no-fault divorce state. This means divorcing spouses are not required to demonstrate proof of the other spouse’s wrongdoing to become eligible for divorce. For example, a divorcing spouse doesn’t need to prove that the other spouse has been unfaithful; they may file for divorce without proving fault.

While Arizona is a no-fault divorce state, it must be proven in the courts that the marriage is “irretrievably broken,” meaning that there are no grounds it may be restored. Either spouse may begin the process of divorce with the assumption that they have, as a couple, lived in Arizona for at least 90 days.

Marriage is a legally binding contract. Therefore, for a marriage to end, the contract must then be legally broken. Divorce itself is the dissolution of the marriage contract, but the divorce only final when the court issues a divorce decree. The divorce decree is the final judgment issued by the court, settling any debts, divisions of assets, and custody agreements.

Covenant Marriage

An alternative type of marriage, known as a covenant marriage, was established in a few states in the late 1990s. Louisiana was the first state to enact covenant marriage in 1997, while Arizona followed suit in 1998. Covenant marriage is a seemingly stricter form of marriage where the couple agrees that they will not divorce. This means the standards necessary for divorce in a covenant marriage are much more intense than in an otherwise typical marriage. [2]

Covenant marriages were initiated, seemingly, in an attempt to contend with the rising number of divorces. In a covenant marriage, the couple undergoes intensive premarital counseling. Once the marriage is finalized, should either of the parties seek a divorce, fault will have to be proven for the divorce to take place. Effectively, a covenant marriage reverses the premise of a no-fault divorce.

Because fault must be proven for a covenant marriage to be dissolved, the grounds for fault include:

• Abuse
• Abandonment
• A felony conviction
• Adultery
• A specified time of separation from bed and board

The couple would also have to undergo counseling before divorce proceedings take place. The major implications of a covenant marriage are that the potential resulting divorce will likely take more time and involve a higher amount of cost for the concerned parties.

Despite the intentions of a covenant marriage, they have not been popular. These marriages comprise just 5% of all marriages. However, the divorce rate is less than half of that of a typical marriage. [3]

Annulment Overview

Unlike a divorce, an annulment does not work to dissolve an existing marriage. Instead, annulment makes the assertion that the marriage is null and void and wasn’t valid in the first place. This makes annulment quite different from divorce within the confines of the law.

Because it must be established that there was no legal marriage between the two parties, there are a select few circumstances that can lead to an annulment. These circumstances are as follows:

• The two parties are blood relations.
• At the time of marriage, one of the parties was a legal minor, and consent by a parent or guardian was not acquired.
• One of the parties was already married at the time of the second marriage.
• At least one of the parties was without the mental capacity to consent to marriage.
• At least one of the parties was without the physical capacity to consent to marriage.
• At least one of the parties was inebriated at the time of the marriage.
• A marriage license wasn’t secured.
• Parties employed a proxy rather than marrying in person.
• At least one of the parties did not disclose their religion at the time of marriage.
• At least one of the parties did not intend to join in the marriage.
• One of the parties was under duress at the time of marriage.
• The parties have not consummated the marriage, or one party refuses intercourse.
• One of the parties committed an act of fraud to encourage the other party into marriage.

This is by no means a complete list, but these are the most common circumstances that would make an annulment possible.

What Qualifies as an Annulment?

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The purpose of an annulment is to declare that the marriage never existed in the first place due to an issue of ineligibility. Ineligibility of the marriage can be examined by either spouse, whether the circumstances were duress, age, physical or mental incapacitation, or fraud. If the court finds sufficient evidence that one of these situations occurred, the marriage can be declared void or voidable. A marriage that is void is one that has been defunct from the beginning. A voidable marriage is one that can be declared void due to circumstance.

It is important to note that only one situation above automatically renders a marriage void. This situation involves a blood relationship between the two parties, including aunts/uncles and nieces/nephews, cousins, siblings, or grandparent/grandchild. The other situations mentioned above are all reasons by which a marriage may be considered voidable. However, the marriage is valid until one party chooses to legally pursue an annulment.

How to Get an Annulment

The first step to securing an annulment is to file annulment paperwork at a local courthouse. The Superior courts hear cases of annulment, and a judge must declare the marriage null and void to annul it by a court order. The party requesting the annulment must file a petition for annulment, while the other party may file a response to the petition. Both parties will be required to appear before the courts so that the evidence may be presented, and a determination can be made by a judge.

Overall, the process takes place much like a divorce. An annulment is just as serious as a divorce, so securing legal counsel is recommended for annulments as well as divorces.

Results of an Annulment

Because a divorce and an annulment are different in the eyes of the law, divorce and annulment may affect other common considerations of ending a marriage a bit differently, including child custody, child support, and more. For example, the paternity of any children born within the union may become unclear, as the marriage itself was declared invalid. Therefore, outsiders may believe that any children could be considered illegitimate.

However, the state of Arizona recognizes that children are tied to their parents whether they are born into wedlock or not. Most states no longer recognize the terms legitimate or illegitimate. In certain situations, there is a presumption of paternity. What this means is that the alleged father is assumed to be the actual father. These situations include the following:

• A signed and notarized statement exists of both the father and the mother affirming paternity.
• The mother and father were married for the 10 months right before the birth, or a child is born within the 10 months after a marriage ends either by annulment, death, or divorce.
• The birth certificate is endorsed by both the father and the mother of the child born out of wedlock.
• At least 95% genetic probability exists between the child and the father.

Just one of these circumstances needs to exist for a presumption of paternity. [4]

What Are the Benefits of an Annulment?

Because an annulment invalidates the marriage, there may be a few benefits to an annulment versus a divorce. The cost of an annulment versus a divorce are comparably the same, since both cases must take place in family court. In some situations, the time necessary to prove the circumstances leading to the annulment may prove a bit more costly, but the difference is likely minimal.

One potential benefit of an annulment is that one party will not have to pay spousal support, as the marriage itself is considered nonexistent. A prenuptial agreement may also be invalidated due to an annulment. A similar benefit of an annulment versus a divorce is that any shared property with your spouse will be divided.

For cases of divorce, the parties must wait for 60 days before proceeding. Aside from a requirement of living in Arizona for at least 90 days, there is no such “cooling off” period after filing an annulment like there is for divorce. As a result, an annulment would allow the parties to remarry immediately.

FAQs About Annulment vs. Divorce

These FAQs about divorce vs. annulment can help you decide which process might be best for your situation.

Q: What Qualifies You for an Annulment in Arizona?

A: There are a number of circumstances in which you may qualify for an annulment. Age, mental and physical capacity, incest, fraud, and paperwork may all factor into qualifying for an annulment. Contacting a lawyer will help you determine if your circumstance is eligible.

Q: Is Annulment or Divorce Better?

A: There are benefits to both choices, depending on your circumstances. However, determining what is right for you and your situation should be the top priority.

Q: How Long Do You Have to Annul a Marriage in AZ?

A: The only time requirement for an annulment is time spent in residence. You or your spouse must have been a resident of or stationed in Arizona for a minimum of 90 days before you may petition for an annulment.

Q: Why Do People Get Annulments Instead of Divorce?

A: In several different circumstances, a marriage may be annulled, or considered null and void. If the conditions are met, the courts may grant an annulment, which recognizes that the marriage was not valid and, therefore, never existed in the first place.

There are also certain benefits to an annulment versus a divorce, including no alimony/spousal support and minimal time required to wait for an annulment versus a divorce.

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Hiring a Lawyer for Annulment

The number of divorces and annulments may have shown a downward trend over the last 20 years, but the process of ending a marriage is still prevalent in American culture. [5] While it may seem like a simple process, an annulment, like a divorce, can involve a great deal of paperwork and stress. Fortunately, hiring a skilled attorney can help you approach the end of your marriage with confidence and ensure the process occurs as smoothly as possible.