Annulment Versus Divorce

Three days after your wedding, it happens: You realize you’ve made a HUGE mistake. No worries, though, you can just get an annulment, right? In North Carolina, maybe not! Unless you fall into a few very specific categories, you are going to have to get a divorce instead.

What is an annulment? How is it different than a divorce?

Divorce ends a valid marriage, whereas an annulment is a court order declaring your marriage invalid. As far as the court is concerned, since your marriage was void or voidable (wasn’t legal when it happened), once you get an annulment, you were never technically legally married at all. To get divorced in NC, you have to have been separated for a year, but you can file for an annulment at any time.

Who qualifies for an annulment?

Only people in certain narrow categories qualify for an annulment:

• Incest: If you and your spouse are more closely related than first cousins, you can get an annulment. This includes parents and children, siblings, half-siblings, or double first cousins. A double first cousin is a cousin who has all the same grandparents as you. For example, when your mom’s sister and your dad’s brother have a child, that person is your double first cousin.
• Being underage: If you were underage when you got married, you can get an annulment. Note, however, that the laws were changed recently. If you were married after August 18, 2021, this means if you were under 18 and didn’t have parental permission or a court order or if you were under 18 and your spouse was more than 4 years older than you. If you were married before August 18, 2021, the laws are more complicated, and you need to talk to an attorney.
• Lack of consent: You can get an annulment if you were forced or tricked into getting married or if you didn’t have the capacity to make decisions for yourself when you got married.
• Undisclosed mental illness or impotence: If when you got married your spouse had a serious and debilitating mental illness or an inability to consummate the marriage and they didn’t tell you, then you can get an annulment. Both of these require a diagnosis by a doctor. Sterility alone does not count as impotence.
• Mistaken belief of pregnancy: If you got married because you both thought there was a pregnancy, you separate after 45 days, and no child was born in the 10 months after the marriage, you can get an annulment.
• Bigamy: If one spouse was already married, you can get an annulment. This is different from other annulments. The other cases listed here are voidable marriages, meaning that the spouses can choose to stay married if they want to. A bigamous marriage is void, meaning that it isn’t legal and never was, even if both spouses want to stay married. Only a spouse can ask for a voidable marriage to be annulled. Other people, like the first spouse, can ask for a bigamous marriage to be annulled. Technically, because bigamy is illegal, a bigamous marriage doesn’t need an annulment order to not count as a legal marriage, but it’s best to get the order to clarify the record.

What happens after an annulment?

In an annulment, since the marriage is being erased, the court can’t grant alimony or divide property like in a divorce. The court can grant post-separation support before the annulment is heard and can grant attorney fees.

An annulment does NOT de-legitimate any children that were born during the marriage.

How do I know what I should do?

Knowing whether you qualify for an annulment and whether it is in your best interest is a complex question. The best way to find out what you should do in YOUR unique situation is to consult with an experienced family law attorney.