Annulment

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Class NameInstructor NameDate, Semester

Family Law for the Paralegal2nd Edition

Wilson

Chapter 4:Annulment

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Describe the nature, purpose, and effect of an annulment.

Explain the difference between a void and a voidable marriage.

Identify the differences between annulment and divorce.

4.1

4.2

4.3

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Describe the procedure for obtaining an annulment.

List a minimum of five grounds for annulment.

Identify potential defenses to an annulment action.

4.4

4.5

4.6

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Describe the potential role of a paralegal in an annulment action.

4.7

Learning ObjectiveAfter this lecture, you should be able to:

4.1Describe the nature, purpose, and effect of an annulment

• An annulment is the legal procedure for declaring that a “marriage” is null and void from its inception. It essentially establishes by civil law that the marriage never existed.

• A religious annulment nullifies a marriage for religious purposes only. The parties remain married under the civil law until the marriage is annulled by legal process.

• An annulment is the “other side of the marriage coin” in the sense that it addresses situations in which one of the requirements for a entering a valid marriage was not satisfied.

What Is An Annulment?4.1

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For the parties: • Although the states vary, the general rule is that

property division and spousal support provisions do not apply as they would following a divorce although some courts provide for support by statute or by applying equitable principles. (See, for example, Case 4.3 Williams v, Williams (2004) on pages 113-115 of the text in which Nevada’s high court adopted the putative spouse doctrine in the annulment context.)

• The states vary with respect to whether or not a prior alimony award will be revived following an annulment, but the majority rule is that it will not.

• An annulment decree may revive a party’s legal status and rights in some respects such as entitlement to Social Security and worker’s compensation death benefits flowing from a prior marriage.

What Are The Consequences Of An Annulment?4.1

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For the children:

• In most states, children born to marriages that are subsequently annulled are deemed “legitimate” under state law. They are typically described as “children born out of wedlock.”

• Courts in annulment actions will usually make orders for the care, custody and maintenance of the parties’ minor children.

• Children of annulment may need to establish legal parentage to establish inheritance rights or to file wrongful death or workman’s compensation claims for injury to a parent.

• Children of annulled marriages are required to go through extra bureaucratic steps to establish their rights to citizenship or a variety of federal dependent-based benefits.

• When the marriage of a minor child is annulled, the duty of his or her parents to pay child support is revived.

What Are The Consequences Of An Annulment? (Cont.)4.1

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• Void Marriage: A void marriage is a marriage that was never valid because it involves a union prohibited by law (such as when one party is already married to another person still living).

• Voidable marriage: A voidable marriage is a marriage that remains valid until it is rescinded in an action typically by a party who has been wronged. If no action is taken to annul the marriage, it will remain valid.

• Some states do not distinguish between void and voidable marriages. In some of the states that do, it may not be necessary to seek a legal declaration of nullity in the case of a void marriage for the “marriage” to be deemed legally invalid.

What Is The Difference Between A Void And A Voidable Marriage?4.2

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Learning ObjectiveAfter this lecture, you should be able to:

4.3Identify the differences between annulment and divorce

Annulment:

• One or both parties claim the purported marriage does not exist.

• The ground exists at the inception of the “marriage.”

• An annulment declares the marriage null and void from the outset (ab initio).

• Some rights previously terminated upon the “marriage” may be revived.

• In some states, rights to property acquired during the marriage may be extinguished and in others they may be preserved using equitable remedies.

• Absent a statute there is usually no right to spousal support following an annulment.

• If the parties filed joint tax returns in the 3 years prior to the annulment, they must each file amended returns.

What Are The Primary Differences Between Annulment And Divorce?4.3

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Divorce:• Divorce severs a marriage the parties acknowledge exists.• In the vast majority of cases, the cause for divorce arises

after the marriage was established.• Divorce terminates a marriage as of the date of the

divorce judgment.• Traditionally after divorce, the parties have a continuing

legal status as former spouses with respect to custody, support, and property division.

• Alimony and other benefits flowing from a prior marriage usually are not revived following divorce.

• In a divorce, marital property is usually divided based on community property or equitable distribution principles.

• In some states, spousal support may be awarded based on one party’s need and the other party’s ability to pay.

• Divorced spouses may file a joint tax return for the year in which their divorce is granted assuming they are married for some portion of that year.

What Are The Primary Differences Between Annulment And Divorce? (Cont.)4.3

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Learning ObjectiveAfter this lecture, you should be able to:

4.4 Describe the procedure for obtaining an annulment

• Annulment procedures vary from state to state.

• The initial pleading may be called a Complaint, Petition, Libel, among others depending on the jurisdiction.

• In some cases, a party may file a declaratory judgment action seeking clarification with respect to the validity of his or her marriage.

• Once filed, the process is essentially the same as for other civil actions: service, answer, related motions, discovery, negotiation, hearing/trial (in which the court may address related issues such as children, property, and support), decree.

What Is The Procedure For Obtaining An Annulment?4.4

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• The burden of proof is on the person challenging the validity of the marriage given the strong public policy favoring marriage.

• The standard of proof is usually clear and convincing evidence.

• Parties with standing to bring an annulment action include: the parties (although some states provide that only an innocent party can file); a parent or guardian on behalf of a minor; a conservator or guardian on behalf of a ward; sometimes the administrator or executor of a decedent’s estate; and in the case of a void marriage, children and certain other third parties.

• An annulment action usually cannot be brought after the death of a party if the marriage was followed by cohabitation and the birth of children.

What Is The Procedure For Obtaining An Annulment? (Cont).4.4

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Learning ObjectiveAfter this lecture, you should be able to:

4.5 List a minimum of five grounds for annulment.

• Specific grounds for annulment vary by state and may appear in state statutes, case law, and/or be based in common law.

• Generally a party may not challenge the validity of a marriage based on the other party’s expressed or implied representations regarding character, habits, chastity, social standing, financial worth or similar matters.

• Grounds are essentially of two types:• Grounds that relate to legal capacity to

marry customarily rendering the marriage void

•  Grounds relating to intent to marry customarily rendering the marriage voidable

What Are The Grounds For Annulment?4.5

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• Nonage: below the minimum age to marry without parental consent or judicial approval

• Consanguinity: too closely related by blood under state law

• Affinity: too closely related by marriage under state law

• Bigamy/polygamy: entering a subsequent marriage while a prior marriage of one or both parties is still in effect

•  What if a party seeks an annulment on the basis that the parties are of the same sex genetically? The states that have addressed this question reach different results based largely on whether the state/court bases one’s sex on genetics or on gender identity (See Paralegal Application 4.2 To Be a He or Not to Be a He – Should It Matter? on page 107 of the text.)

What Are The Grounds For Annulment Related To Legal Capacity To Marry?4.5

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• Lack of consent: There was no shared intent at the time of the marriage to share the rights and duties of marriage (due to mental incapacity, intoxication, etc.).

• Duress: A threat of harm was made that compelled a party to enter a marriage contrary to his or her free will or judgment.

• Undue influence: A party entered a marriage contrary to his or her free will or judgment in response to another’s improper use of power or trust. (See Case 4.1 Estate of Goodwin v. Faust-Graham on pages 109-110 of the text.)

• Impotence: If not known prior to the marriage, inability to have sexual intercourse is a ground for annulment in some jurisdictions although failure to consummate a marriage is not necessarily a ground.

• Underage: At the time of the marriage a party was of an age when parental consent or judicial approval was required to enter a valid marriage.

What Are The Grounds For Annulment Related To Intent To Marry?4.5

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• Fraud: A party made a false statement of a material fact with an intent that the other party rely on the statement to his or her detriment by entering a marriage.

• The fraud must go to “the essentials of marriage” (having children, etc.) and the courts generally must be able to find that the innocent party would not have entered the marriage were it not for the fraud. 

• See Paralegal Application 4.3 on page 108 for a description of the Elements of Fraud.

What Are The Grounds For Annulment Related To Intent To Marry? (Cont.)4.5

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Learning ObjectiveAfter this lecture, you should be able to:

4.6 Identify potential defenses to an annulment action

• Compliance with state statutes governing marriage: The defendant complied with the requirements for a valid marriage in the state where the marriage was entered.

• Ratification of the marriage by subsequent conduct: For example, the plaintiff continued to live with an initially underage defendant after he or she reached the permissible age to marry.

• Consummation of the marriage: Though not necessarily dispositive, consummation is considered evidence of an intent to be married.

• Laches: The plaintiff “slept on his or her rights” and unreasonably delayed in bringing the action thereby prejudicing the defendant’s rights.

What Are Some Of The Potential Defenses To An Annulment Action?4.6

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Learning ObjectiveAfter this lecture, you should be able to:

4.7Describe the potential role of a paralegal in an annulment action

• Equitable estoppel: The plaintiff should not be allowed to assert his or her claim because it will be unfair to the defendant who, for example, may have relied on acts or representations of the plaintiff and could not have known the true facts.

• Judicial estoppel: The plaintiff should not be allowed to prevail because he or she seeks to gain an unfair advantage by making inconsistent statements to the court on the same issue in different lawsuits. (See Case 4.2 Pickard v. Pickard (2006) on page 112 of the text.)

• Res judicata: The matter has already been decided in another judicial proceeding such as a divorce action.

• Unclean hands: the plaintiff should not be granted relief because he or she acted wrongfully, unfairly, or illegally

What Are Some Of The Potential Defenses To An Annulment Action? (Cont.)4.7

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• The paralegal’s role in an annulment case is essentially similar to the role played in other kinds of cases with respect to basic case management and drafting tasks (including pleadings, motions, discovery requests, memoranda, correspondence, etc.).

• The paralegal plays an important role in gathering information and documentation to support the client’s case.

• Research is a critical function in annulment cases which sometimes involve choice of law and conflict of law issues i.e. which law will govern various aspects of the action?

What Is The Paralegal’s Role In An Annulment Case?4.7

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Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

4.1

4.2

4.3

Describe the nature, purpose, and effect of an annulment.

Explain the difference between a void and a voidable marriage.

Identify the differences between annulment and divorce.

12

Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

4.4

4.5

4.6

Describe the procedure for obtaining an annulment.

List a minimum of five grounds for annulment.

Identify potential defenses to an annulment action.

12

Class NameInstructor NameDate, Semester

Chapter Summary

4.7 Describe the potential role of a paralegal in an annulment action.

Learning ObjectiveAfter this lecture, you should be able to:

4.2Explain the difference between a void and a voidable marriage