Annulment vs. Divorce

Posted on November 3, 2014 by

The decision to begin divorce proceedings is a life-changing choice that should only be made after careful consultation with your attorney. During this consultation, your attorney should address several issues that will impact your decision. These issues shall include, but are not limited to, annulment and divorce. Though you may be unfamiliar with how to obtain an annulment or divorce, provided below is a simple explanation that is easy to understand.

Annulment

Depending on the circumstances of your marriage, you may be able to legally terminate your marriage by either annulment or divorce. Annulments are rare and only available under very limited circumstances. An annulment is a court-ordered determination that the marriage never existed, i.e. Void or Voidable. A divorce, on the other hand, is a legal termination of a marriage that did exist. An annulment will not be granted on any grounds if the parties had been married for at least two years prior to filing suit for annulment.

Void marriages have no legal effect and, thus, never existed. This type of marriage may result from:

• lack of a proper marriage or ceremony;
• bigamy;
• marriage between blood relatives; or
• underage marriage without required parental consent.

Voidable marriages are valid unless one of the spouses obtains an annulment. Voidable marriages may result from issues such as:

• mental incapacity or infirmity of a spouse;
• fraud or duress;
• natural or incurable impotency existing at the time of marriage contract; or
• spouse’s unknown felony.

In order to receive an annulment in Virginia, you or your spouse must have been a resident of the Commonwealth of Virginia for at least six months before seeking an annulment. Annulment claims must be filed in the circuit court where:

• both spouses last cohabitated in VA;
• the defendant spouse resides if he/she is VA resident; or
• the plaintiff resides.

If you meet the residential and grounds requirement for annulment, you may be able to obtain an annulment in VA.

Divorce from Bed and Board

The first type of divorce is Divorce from Bed and Board. When a court grants this type of divorce, it orders that the spouses’ personal rights and property are legally separate. Any property acquired after this court order will be in the sole possession of the spouse who obtained it. In order to obtain this type of divorce, you must prove one of the following grounds: cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment, or constructive desertion. Desertion by either spouse will meet the requirement for grounds for divorce from bead and board.

Revocation of divorce from bed and board may be acquired at any time from the court that entered the divorce decree. Divorce from bed and board may merge into a divorce from the bonds of matrimony.

Divorce from Bond of Matrimony

Unlike the divorce from bed and board, this type of divorce is a complete legal termination of the marriage. A divorce from the bonds of matrimony may obtained by fault grounds or no-fault grounds. Fault grounds for divorce include:
• adultery;
• either spouse is convicted of a felony after marriage and sentenced to more than a year of confinement;
• cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.

There are two methods to obtain a no-fault divorce. The first method requires the spouses to live separately and apart, uninterrupted for one year. The second method requires that neither spouse have natural nor adopted children, spouses enter into a separation agreement; live separate and apart, uninterrupted for six months. In Virginia, if both spouses are guilty of fault grounds for divorce, the court may choose to grant a no-fault divorce.

Every client’s decision to begin divorce proceedings is personal and unique. Our experienced attorneys will give you an in-depth consultation based on your unique facts and circumstances.

Categories: Articles, Divorce
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