Annulment vs Divorce

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Ninety nine percent of the time, a petition filed for an annulment in Florida will end up being a divorce. This happens because people do not know the difference between a divorce and an annulment nor do they know which petition to file that would be the most benefit to their case. A Florida petitioner is given no discretion in regards to what petition to file, because the situation itself will dictate that for them. If your marriage is found to be valid, the only way to dissolve it is with a divorce, but if the marriage is found to be void, it can then be annulled. Burger vs Burger, 166 So. 2d 433 (Fla. 1964).

An annulment would make the marriage invalid and considered to never have existed, but a divorce action is one that recognizes a valid marriage exist and must be dissolved by a legal divorce so the parties can be single again. Kuehmstedt vs Turnwall, 103 Fla. 1180, 138 So. 775 (1932). The state of Florida only recognizes three criteria in which an annulment may be based upon. Those three criteria include: Incestuous marriage, lack of consent due to one spouse not having the mental capacity to enter into a marriage contract, and if one of the spouses committed bigamy. If none of these three criteria, as described in Florida Statutes § 741.21, applies to your case, you cannot get an annulment in the state of Florida.

The two most common of these criteria that occur in Florida courts are inadvertent bigamy and “lack of consent.” An example of inadvertent bigamy is, “I married my spouse before he was legally divorced.” An example of lack of consent is where a much older person suddenly marries a person much younger and a third party, usually a child or legal guardian of the older spouse, challenges the marriage. If you are the victim of bigamy, you will have to show a copy of the divorce, for the prior marriage where it shows post-dates of the subsequent marriage. In addition, there are traditional religious criteria for annulment that include: broken promises to have children, failure to produce children and/or failure to consummate the marriage, but none of these will suffice in Florida courts.

Within a six year span of time in the family law practice, approximately six to eight cases for annulment appeared before the court; of these, only two were granted. Of the remaining four cases, all were told to re file a petition for divorce. If you believe you may have a qualifying event to get an annulment, you will have to provide the court with solid evidence and if the courts deem your evidence to be sufficient, your marriage will then be considered “void” and further disregarded as nonexistent. Kuehmstedt vs Turnwall, 103 Fla. 1180, 138 So. 775 (1932); Beidler v. Beidler, 43 So. 2d 329 (Fla. 1949).

If your case turns out to be an annulment, it will mean that you will have no rights to alimony and no property rights. It also means that both child custody and child support will still be issues, but the parties will be able to proceed as if unmarried. In the interest of children of annulments, Florida law provides the caveat that children inadvertently made illegitimate by the annulled marriage of their parents, will not be legally considered illegitimate. See the example of: Ruff’s Estate, 32 So.2d 840 (Fla. 1947). Simply because the majority of annulment cases end up in divorce court, you are advised to get an attorney in your state of residence and make sure your annulment case meets all legal criteria. Assuming it will not, your next step will be to proceed with a divorce.

by: Theodore Rechel

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