In Virginia annulments are one of the most misunderstood concepts in family law. Thanks to Hollywood, many people believe that any marriage can be annulled if it was short lived. That’s not true though, and at least in Virginia a marriage can only be annulled in a very limited number of circumstances, none of which involve brevity—but you must file your annulment within two years of marriage.
Annulment Versus Divorce
Before discussing the limited circumstances where an annulment is possible, first it is important to understand what an annulment is and how it differs from a divorce. An annulment is recognition that a marriage is invalid, while a divorce is the dissolution of a valid marriage. Basically an annulment means there was a circumstance that meant there should never have been a marriage in the first place. That is why when a marriage is annulled it is as if it never occurred at all. Another distinction that is worth considering is that with an annulment there is no alimony or property division like there is with a divorce.
In Virginia it is incredibly difficult to have a marriage annulled because a spouse needs a specific legal ground for the annulment. Virginia law states that there is only a legal ground in the following circumstances: bigamy, incest, incapacity, fraud, impotence, underage, spouse was a prostitute or felon, spouse had a child by another person, and duress. While many of these circumstances seem straightforward, there are some nuances in the law as described below:
- Bigamy: A spouse had another husband or wife at the time of the marriage
- Incest: The spouses are related by blood, half-blood, or adoption
- Incapacity: A spouse did not have the mental capacity to consent to the marriage
- Fraud: A spouse was deceived into consenting to marriage after the other spouse made an intentional misrepresentation that was relied upon and caused damage
- Impotence: A spouse in unable to sexually reproduce and knew about this inability at the time of marriage
- Underage: A spouse was below the legal age to marry, in Virginia the age is 18 but it may be younger in certain circumstances with parental consent
- Spouse was prostitute or felon: At the time of the marriage one spouse did not know that the other was a felon or had been a prostitute
- Spouse had child by another: A wife was pregnant with the child of another man at the time of the marriage or the husband fathered a child with another woman within 10 months of the marriage
- Duress: One spouse agreed to marry because of threat of serious harm
As you can see having your marriage annulled in Virginia is quite difficult because it requires one of the above circumstances. Additionally, if you learn about one of the grounds for annulment but continue to live with your spouse afterwards, you are no longer eligible for an annulment. On top of all that, the annulment must be initiated within two years of your marriage. This requirement is the root of the confusion about annulments. Technically all annulments are for marriages that last under two years, but the reason is not the brevity of the marriage it is one of the specific legal grounds.
If you are in a situation where you have a legal ground for annulment you will need to file a Complaint for Annulment in the circuit court of the county where you or your spouse resides. The complaint must be served on your spouse and eventually there will be a hearing where you must prove the legal basis for your annulment. Again, the court cannot order any alimony or property division in conjunction with the annulment, but issues involving child custody and support will be resolved.
The ability to obtain an annulment is often of great significance for individuals of certain religious faiths. You may be disappointed to learn that your marriage does not fit into one of the statutory categories, but divorce may also not be an option. In these situations it is possible to use a Separate Maintenance Order to simulate the outcome of a divorce without having one granted. These agreements can stipulate everything that would be covered in a typical divorce such as the division of assets and spousal support, with the difference being that the marriage would remain legally intact.
Va. Code Ann. § 20-89.1