Annulment Vs. Divorce

While Arizona marriage annulments are rare, they can be obtained if the required legal grounds exist. Most couples file for divorce because annulment is not an option for them.

What is an Annulment?
Annulment is based on the theory that the marriage was never valid. An annulment returns a person to single status, as they were never legally married. Couples can live together for years and claim to be husband and wife, yet they are not.

Arizona Annulment Process
To be eligible for an annulment in Arizona, a legally married couple must prove their marriage is void. Marriages subject to annulment proceedings are classified as “void” or “voidable,” sometimes called nullified marriages. Void marriages are nullities from the very start – prohibited marriages, such as incestuous unions between brothers and sisters, fall into this category. In contrast, in a voidable marriage, one of the parties has the right to annul the marriage but has yet to do so. To annul a voidable marriage, Arizona court proceedings are required.

In Arizona, what constitutes an impediment to a valid marriage?
If one or more of these grounds for annulment are proven, the court should annul the marriage:

  1. Lacking Consent or Duress
    A marriage that is forced or compelled as a result of violence is voidable and can be annulled. Marriage requires voluntary consent to be valid. Marriage under threat of serious physical harm or domestic violence is incompatible with voluntary consent.
  2. Lacking Mental Capacity, Mental Illness or Insanity
    An Arizona marriage may be annulled when someone marries while insane, mentally ill, or lacking mental capacity such that he or she could not give legal consent to the marriage. Marriages like this are voidable. It is necessary to have contractual intent for a marriage to be valid. Legal capacity may not be available to an insane, mentally ill, or substantially mentally challenged individual. Not a person’s mental state before the marriage or a person’s mental state after the marriage, but their mental capacity at the time of marriage determines their mental capacity.
  3. Temporary Insanity
    A person’s mental state at the time the marriage took place is controlled when temporary insanity is alleged as grounds for annulment. While experiencing temporary or periodic insanity, the person may have experienced lucid intervals. Lucidity means, at least arguably, that the person had the mental capacity to marry at the appropriate time if they were lucid at the time of the marriage.
  4. Fraud
    Whenever one party intentionally misrepresents facts and information to induce or trick the other party into marriage, the marriage is voidable and may qualify for an annulment.
  5. Intoxication
    When someone was drunk, drugged, or under the influence at the time of the wedding ceremony, an individual may be able to annul their marriage contract if they were intoxicated to the point that they could not understand the meaning and consequences of entering into a marriage contract.
  6. Inability to Consummate the Marriage or Impotence
    Those seeking annulment for impotence must prove that their spouse was permanently and incurably impotent at the time of marriage. It wasn’t discovered until after the marriage that the condition existed.
  7. Underage Marriage Without Parental Consent
    Marriage contracts in Arizona require people to be at least 18 years old. Children under 18 must have their parents’ or guardians’ consent to marry legally. An approval from a Superior Court judge is also required for children under 16 to marry. The marriage of an underage person is voidable if the license was obtained without parental consent or court approval.
  8. An Incestuous Marriage
    In Arizona, infidelity can also be used to annul a marriage. According to Arizona law, marriages between parents and children, grandparents and grandchildren of every degree, brothers, and sisters of half or whole blood, uncles and nieces and aunts and nephews, and first cousins are prohibited. Marriages of this kind are prohibited by law and are void.
  9. Bigamy
    By entering into another marriage before the first one has been legally dissolved through divorce or termination, one commits bigamy. One spouse can only be married to one person at a time in Arizona. It is also a class 5 felony to knowingly marry another person while still married to a living spouse.
  10. Mock Marriage
    A mock marriage can occur when the parties never intended for their marriage to be legally binding. There is no validity to this so-called mock marriage. A court may recognize the union as valid if they agree to marry purposefully to accomplish some specific goal. Valid marriages cannot be annulled.
  11. Other Impediments to Valid Marriage
    Finally, the court may consider annulment of marriage based on other grounds as well, so long as those grounds constitute an impediment to annulment. When a marriage is annulled, both parties can marry again without obtaining a divorce. It is important to remember that, upon annulment, each party forfeits any rights they previously enjoyed as a married couple. Among them are rights to community property (marital assets), succession, inheritance, and spousal maintenance (similar to alimony in other jurisdictions).

Three Common Misconceptions About Annulment in Arizona

  1. An annulment is not a quick divorce.
    Divorce and marriage annulment proceedings are similar. Like a divorce, an annulment case awards custody of the children and orders child support. Divorce and annulment of marriage differ in that only divorce can dissolve a valid marriage. An annulment in Arizona is not possible when there is a valid marriage between the spouses.What is the purpose of filing a petition for annulment if the marriage was not legal? The marriage may already be null and void, but the annulment process establishes, for the record, that no marriage exists. By annulling the marriage, this becomes a matter of record and, just as important, gives the court jurisdiction over related matters (such as legal decision-making, parenting time, child support, and property division). If the court finds that a valid marriage exists, a petition for annulment will not be granted.
  2. Valid marriages are not annulled, no matter how long they last
    Second, you may wonder how long you can be married before you can get an annulment. Arizona annulment proceedings are not available for marriages of very short duration (two weeks or a month, for example). Even a very short marriage must be dissolved through divorce proceedings. It is important to understand that the duration of a marriage has no bearing on whether a marriage is void or voidable.Arizona does not have a “time limit” for annulments. There is no time requirement for an invalid marriage; it must meet one of the above criteria. Even a long-term “marriage” could be annulled. The first question you should ask is: “Is the marriage valid? If the answer is no, an annulment may be granted.
  3. Marriages governed by common law
    Thirdly, Arizona law prohibits couples from entering into a common-law marriage. While a couple has cohabitated in Arizona for years while holding themselves out as man and wife, they are still not legally married. (Only a few states allow common-law marriages, such as Colorado, Utah, Texas, Montana, and Kansas.)The couple may be able to obtain a divorce in Arizona if they were married in a state that allows common-law marriages (Texas, for example). It would be necessary for the Arizona court to establish the validity of the Texas common law marriage before granting a divorce.

Divorce in Arizona
Arizona is a no-fault divorce state, like many others. In other words, divorced spouses don’t need to prove their spouse’s wrongdoing to obtain a divorce. A divorcing spouse does not have to prove that the other spouse is unfaithful to file for divorce.

Although Arizona is a no-fault divorce state, it must be proved in the courts that the marriage is irretrievably broken, meaning there are no grounds to restore it. The divorce process may be initiated by either spouse as long as they have lived together in Arizona for at least 90 days.  

The contract of marriage is legally binding. Therefore, a marriage can only end if the contract is broken legally. When a court issues a divorce decree, the divorce is final. Divorce itself dissolves the marriage contract. As a final judgment, the divorce decree settles any debts, divides assets, and determines custody arrangements.

Apart from ending the marriage, the court has the authority to divide certain property and debts between the spouses and order one spouse to pay the other support (alimony). A court can also decide custody, parenting time (formerly called visitation), and child support issues if children are involved. A marriage can only be legally ended by a court. Nevertheless, spouses can agree to as many terms as they wish. There are court services available in several counties to assist parents and children in reaching agreements about parenting time and custody. When spouses reach agreements, there are fewer issues for the court to decide, which may speed up the court process.

Annulment vs. Divorce: FAQs
You can use the following FAQs about divorce vs. annulment to determine the appropriate process for your situation.

  1. How do you qualify for an Arizona annulment?
    An annulment may be granted in several circumstances. It may be based on age, mental and physical ability, incest, fraud, and paperwork.
  2. Which is better, annulment or divorce?
    Both options have advantages, depending on your situation. Determining what is right for you and your circumstances is most important.
  3. How long is the waiting period for annulling a marriage in Arizona?
    An annulment requires only that the couple reside together for a specified period. For an annulment to be granted, you or your spouse must have resided in Arizona for at least 90 days.
  4. Why do people get annulments rather than divorces?
    There are several circumstances where a marriage may be annulled or declared null and void. Courts may grant an annulment if the conditions are met, which recognizes that the marriage was invalid and, therefore, never existed. Annulment also has certain benefits over divorce, such as no alimony/spousal support and minimal waiting time.

Want to Learn More About Annulments in Prescott, Arizona? Contact Us Today!
American culture continues to practice divorce and annulment even though the number of divorces and annulments has declined over the last 20 years. As with a divorce, annulments can be stressful and time-consuming despite appearing simple. A skilled divorce attorney in Prescott, AZ, can help you confidently prepare for the end of your marriage and ensure that the process runs smoothly.

When you need help with an annulment or divorce, contact Willison Law. We are experts in family law in Prescott, AZ. There is no time limit to file an annulment – time is not a contributing criterion – so contacting us now means you’re closer to extracting yourself from an invalid marriage.

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