An annulment is an alternative to a divorce only in certain cases. The difference is that an annulment treats the marriage as though it never happened while a divorce recognizes the marriage as valid but then dissolves it. Virginia recognizes annulments only in limited circumstances. Our firm can help determine whether you may be able to qualify for an annulment and the legal and practical consequences of the same. The firm will advise you of the advantages and disadvantages of an annulment versus a divorce. It is important to remember that when there are children involved, the parents still have a duty to provide for their children even after the marriage is annulled.
Why you May Want to Seek an Annulment
The reasons people seek an annulment vary. Some believe there is a stigma associated with a divorce. Sometimes people realize within hours or days that the marriage was a mistake and they do not want to tell a future spouse or others that they were previously married. However, take note that some spousal rights can be defeated if there is an annulment. There is no entitlement to spousal support or alimony if there is no marriage.
Grounds for an Annulment in Virginia
Virginia has a number of grounds for annulment. Some are easy to prove while others require a lot of investigation and witnesses to show that the ground exists. If a legitimate ground/reason does exist, then either spouse can request the annulment. Even when there is a proper ground, requests for annulment should be brought before two years of marriage have passed.
A marriage may be annulled because it is either “void” or “voidable.” A “void” marriage is a marriage that Virginia considers so defective that it is considered unacceptable and is thus legally invalid. An annulment action is not required but is often brought to make clear to everyone that the marriage was void from the beginning. A “voidable” marriage is legally valid but can be overturned through an annulment court proceeding.
Types of Void Marriages
Marriages in Virginia are void if there’s a formal defect in the marriage; for example, the person who performed the wedding wasn’t legally qualified or there wasn’t a proper marriage license.
Marriages are also void in Virginia if the marriage is prohibited by law. Some marriages are prohibited because Virginia believes such marriages would cause harm to others. This includes:
Bigamy: If a spouse is married to someone else, then marriage to a second spouse is prohibited.
Incestuous marriages: Marriages between close family members are prohibited. Virginia state law has precise definitions of when a marriage is considered “close.”
Underage marriages: Some marriages are immediately suspect because one of the participants was a minor (under 18). If the minor reaches majority and then cohabits with the other spouse, Virginia won’t allow the annulment. Minors 16 and older can marry with the consent of the parent or the guardian. Minors under 16 who are pregnant may be allowed to marry so the child will be born to married parents if there is proof of the pregnancy and parental consent or judicial approval of the marriage.
Mental incompetence: A Virginia marriage is void if one of the spouses lacked capacity to consent because of lack of mental capacity or an infirmity.
Grounds to Annul Voidable Marriages
Unlike “void” marriages, a formal action must be brought in order to annul a “voidable” marriage. A voidable marriage is usually one that contains an element of dishonesty. However, Virginia does not allow an annulment on the ground that a marriage is voidable if the injured spouse consents to the wrong by cohabiting with the other spouse after freely learning of the wrong. If any of the following are true, the marriage may be voidable and thus, there may be grounds for annulment:
Fraud or duress: The marriage was entered into through fraud or duress (fear of harm).
Impotency of a spouse: Either spouse is unable to perform sexually.
Felony conviction of a spouse: Either spouse did not know at the time of the marriage that the other spouse had been convicted of a felony
Wife had been pregnant: Husband discovers that at the time of the marriage his wife had been pregnant with the child of another man.
Husband had fathered someone else’s child: Wife did not know that her husband had fathered a child born to another woman within 10 months after the marriage.
Prostitution: Either spouse did not know at the time of the marriage the other spouse had been a prostitute.
A sham marriage: For example, marriages that take place solely for immigration purposes or to try to claim a child was not born out of wedlock.
Contact Our Virginia Law Firm to Determine if You May Qualify for an Annulment
The Law Office of Afsana Chowdhury will review the facts and explain if an annulment may be permitted in your case. The firm will also explain all the practical issues for all involved. Time can be of the essence so it is best to contact our office as soon as possible. If you wait too long or live together after knowing of the grounds for annulment, you may lose your right to request an annulment. We give an initial phone consultation. Our firm handles all phases of family law including annulments and the custody, visitation and support issues of children of annulled marriages. Call us at 703-271-6519 to schedule an appointment.