Wednesday, January 16, 2013

Grounds for an Annlment

The legal theory underlying annulment is that the marriage was not valid from the beginning, which means a legal marriage never really existed. An annulment, then, returns a person’s status to single, having never been married. Marriages that are subject to annulment proceedings are classified as “void” or “voidable,” and are sometimes referred to as nullified marriages. A void marriage is a void from the very beginning. With a voidable marriage, one of the parties has the right to annul the marriage but has not yet exercised that right. Court proceedings are required to annul a voidable marriage.

It is a common misconception that the annulment process is faster than a divorce. As with divorce, in annulment cases the court will award custody of children and order the payment of child support. The key distinction between a divorce and an annulment is that the divorce terminates a previously valid marriage, whereas the annulment does not involve a valid marriage.

Also another common misconception is that short duration of marriages qualify for an annulment. For example two weeks or a month, does not qualify a marriage for annulment. The dissolution of a valid marriage, albeit a short one, must still be accomplished through divorce proceedings. It is important to understand that the duration of a marriage is irrelevant to the analysis of whether the marriage is void or voidable. Even a lengthy marriage of many years may still be annulled.


The family court will order an annulment if one of the following grounds is established:

1. Mental Illness, Insanity, or Mentally Challenged.  If a person is married while mentally ill, insane, or so mentally challenged that the person could not knowingly and understandingly consent to the marriage, then the marriage is void. Annulments are granted on the premise that marriage is a consensual relationship — the mentally ill, insane, and mentally challenged lack the legal capacity necessary to give their consent to marry. The mental capacity of the person at the time of the marriage is determinative, not some later date in the marriage or time prior to the marriage.

2. Temporary Insanity.  If temporary or periodic insanity is alleged, then the condition at the time of marriage controls whether or not capacity to marry was present. A marriage will not be annulled if it was entered into while the party experienced a lucid interval.

3. Fraud.  If one of the parties was untruthful or misrepresented information for the purpose of inducing the other party into the marriage, then the marriage is voidable and may be annulled on grounds of fraud.

4. Lack of Consent or Duress.  If a person is compelled to marry another under threat of violence sufficient to overcome the mind and will of a person of ordinary mental firmness, then the marriage is voidable and may be annulled on the grounds that marriage is a voluntary, consensual relationship and compulsion to marry is involuntary and inconsistent with consent. Evidence of actual threats of serious violence is required.

5. Intoxication.  If either spouse was under the influence of drugs or alcohol at the time of the marriage, or the complaining party can show there was intoxication at the marriage ceremony to such a degree as to render that person incapable of knowing the nature of the marriage contract and its consequences, then the marriage is voidable.

6. Inability to Consummate the Marriage.  To obtain an annulment for impotency, the complaining party must prove that the other spouse was permanently and incurably impotent when the marriage was entered into, and that the impotence was not discovered until after the marriage took place.

7. Lack of Parental Consent for an Underage Marriage.  Most states have age requirements that must be met for legal consent to enter into a marriage contract. In Arizona, a child under the age of 18 has to have parental consent to marry. If an under-age person was able to obtain a marriage license without court approval or parental approval, then the marriage is voidable and may be annulled.

8. Bigamy. A person commits bigamy by entering into a marriage before the final dissolution of an earlier marriage. The law dictates that a person may only be married to one spouse at a time. Therefore, the bigamous marriage is voidable. A person who marries another knowing that his or her prior marriage has not been dissolved, however, may be guilty of a crime.

9. Incestuous marriage.  In general, all states prohibit marriages between parents and children, between grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, aunts and nephews, and first cousins. Such marriages are void.

10. Same-Sex Marriages.  Arizona does not recognize same-sex marriages which are void. However, same-sex marriages from another state are still subject to annulment.

11. Mock Marriages.  A mock marriage is voidable because it is entered into when both parties have no intention that the marriage should be binding. However, if the couple’s purpose was to accomplish a specific objective in agreeing to marry, such as legitimizing a child, then most courts will regard the marriage as valid and will not grant an annulment.

However, some of the grounds listed above a hard to prove and convincing a judge can be difficult.  If you are unable to convince a judge that you qualify then a judge can dismiss your case and make you start over again if you want your marriage dissolved.

If you are successful in getting your annulment granted both parties forfeit any rights that they enjoyed previously as “married” persons, including the right to marital property, to succession and inheritance, and to spousal maintenance (alimony).

The choice as to seek an annulment or a divorce is a difficult one.  A person should seek the advice of an attorney if they are looking to annul their marriage before proceeding.

For more information call Discount Divorce & Bankruptcy for a FREE consultation.

The experienced family and bankruptcy document prepares at Discount Divorce assists clients throughout Arizona, including the cities of Ahwatukee, Anthem, Apache Junction, Avondale, Bisbee, Buckeye, Bullhead City, Camp Verde, Casa, Cottonwood, Douglas, Eloy, Grande, Carefree, Cave Creek, Chandler, El Mirage, Flagstaff, Florence, Fountain Hills, Gila Bend, Gilbert, Glendale, Globe, Goodyear, Gudalupe, Kingman, Lake Havasu City, Litchfield Park, Marana, Maricopa, Mesa, Nogales, Oro Valley, Paradise Valley, Payson, Peoria, Phoenix, Prescott, Prescott Valley, Queen Creek, Safford, San Luis, Scottsdale, Sierra Vista, South Tucson, Snow Flake, Sun City, Sun City West, Surprise, Tempe, Tolleson, Tucson, Waddell, Wickenburg, Winslow, Youngtown and Yuma.

Visit
www.discountdivorcepro.com or call (602) 896-9020. Discount Divorce is located at 13817 N. 19th Ave., Phoenix, AZ 85023-6105.

Email:
DiscountDivorce@msn.com

As always you should seek legal advice for specific issues like the one above before coming to Discount Divorce to have your documents done and processed so that your legal rights may be protected.

1 comment:

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