Legalese — Divorce vs. Annulment

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Unfortunately, a lot of people come into my office wanting to get divorced.  A very few come in wanting their marriage to be annulled.  Very few people have a clear handle on which is appropriate and when.

In most cases, divorce is the standard, best, and, indeed, only option.  According to the law, marriage is a contract: an agreement between two parties.  Divorce is a declaration by the Courts saying that whatever obligations you had during that contract are no longer your obligations.  Annulment is more retroactive.  It says that the marriage never took place in the first place because of certain things that made the marriage contract no good from the beginning.  When you are divorced, you were married.  When you are annulled, you never were in the first place, and so all the potential benefits from having a spouse, even an ex-one go away.  I’m talking about social security, military benefits, pension benefits, etc.

So what are the circumstances that would make a marriage contract no good from the beginning?  Well, for one thing, in order to make a marriage contract (that is, get married) you have to be of sound mind.  That doesn’t necessarily mean ‘perfectly sane,’ which is something hardly any of us can claim.  It means that you have enough intellectual and mental capacity to understand what you are doing and what that means.  Many of us would say that rules out a great number of folks under the age of 25, but the law’s standards are much lower than mine.  You also have to be 18 years old – or 16 or 17, so long as your parents consent.  You can’t already be married, and you can’t be too closely related to your prospective spouse by blood or marriage.

Even assuming you’ve met those conditions, there is more to it.  There has to be an actual contract.  An actual contract means that there was a ‘meeting of the minds,’ that is, that you both agreed to get married and you both understood what marriage meant.  The marriage, in order to be complete, also has to be consummated.  This means exactly what you think it means, even though in 2015 no one is checking the sheets the morning after your marriage to make sure. 

In cases in which there is some question whether or not there was an actual marriage (such as a common law marriage that took place prior to 1997 or a marriage from a foreign country or some other reason why a marriage certificate could not be found in the public record) the Courts use contract law principles to determine whether or not a marriage has taken place.  It is a matter of fact that the judge (or jury) gets to determine.  I had once case involving a common law marriage of some thirty-odd years.  One of the parties wanted to say that they were never married.  What ultimately tipped the scales for the judge was the fact that for decades they filed their taxes as “Married Filing Jointly.”  So either they had been married or they had committed tax fraud.  When this was pointed out they agreed they were married.

There are religious concerns regarding whether or not divorce or annulment is permissible.  The rules of your particular church may or may not coincide with the laws of the State of Georgia, and there may be reason for you to get a secular divorce and a religious annulment.  This is a matter to discuss with your clergyman and has no bearing on what a Georgia Court will do. 

This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form.  It is written for general (and generally vague) informational purposes only.  In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation.  I have not done that here


About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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