Last Updated on September 7, 2022 by Benson Varghese
What is an annulment?
An annulment is a way to end a marriage. In an annulment, a court confirms that at the time of marriage, the marriage was invalid. In other words, it is like the marriage never existed.
Void and Voidable Marriages
In Texas, an annulment may be granted to invalidate two different types of marriage: void and voidable marriages.
Void marriages are those that were not legal from the start. Bigamy is an example of a void marriage. In such cases, one spouse was already married to someone else and the prior marriage was not dissolved by divorce or death of the first spouse at the time of the new marriage. An annulment may be granted if your spouse was still married to someone else at the time of your marriage.
A voidable marriage is one that was legal, but there was some impediment to the marriage. For example, one party was impotent at the time of marriage and concealed this fact from the other party. For voidable marriages, there are steps that need to be undertaken by the unknowing spouse once they discover the issue to be eligible for an annulment.
How is annulment different from divorce?
In a divorce, the marriage is considered legally valid. In an annulment, there is some legal reason why the marriage was not valid from the start.
Can I get an annulment?
Annulments have special exceptions to let someone out of a marriage. Some of those exceptions are:
- Underage marriage
- Marriage was performed while one or both parties were heavily under the influence of drugs or alcohol
- Impotency that was hidden from the partner prior to the marriage
- Mental incapacity
- One party concealed their previous divorce (which occurred within a 30-day window before the current marriage) from the new spouse
- The parties did not wait 72 hours after the issuance of the marriage license to get married
Some of these exceptions have caveats. For example:
- If the exception where parties did not wait 72 hours before marriage applies to you, you have to bring an annulment suit within 30 days of the marriage.
- If at the time of marriage either or both parties were intoxicated (beyond just a few drinks) or under the influence of drugs, but then the couple continued to live together (cohabitated) after getting sober, no annulment can be granted.
Generally, if any of these exceptions apply to you, but then you voluntarily consent to keep living with your spouse as if you are married, an annulment may not be granted.
What if your spouse concealed their previous divorce?
In Texas, a party must wait 30 days after getting a divorce to marry someone new. If your spouse got a divorce within 30 days of your marriage ceremony and you did not know about it, you may be eligible for an annulment. In addition to not knowing about the divorce, you must have moved out of your shared home once you found out. If you continued living with your spouse once you found out about the previous divorce, you may not be eligible for an annulment. But, you can still obtain a divorce.
Can you get an annulment after your spouse dies?
No. In Texas, you cannot get an annulment once either spouse has passed away.
Incapacity and Annulments in Texas
You may be able to get an annulment if one spouse had mental incapacity at the time of marriage but later regained capacity. For example, if at the time of marriage, either spouse was mentally incapacitated, but then regained capacity and voluntarily co-habitated with the other spouse as if the parties were married, no annulment can be granted.
Are there any other reasons why a marriage may be invalid?
Yes. As discussed above, if one spouse is married to someone else at the time of marriage, a marriage is considered void in Texas. However, to declare a marriage void, the party seeking to declare the marriage void must do so before the other spouse files for divorce from their first spouse. Consanguinity (incest) is another reason why parties may declare a marriage void in Texas.
When does the court have the power to grant an annulment?
For a court to be able to annul a marriage, it must have jurisdiction. For annulments, this means that parties have to live in Texas or have been married in Texas. The court only needs jurisdiction over one party, but that party needs to have been domiciled in Texas. Domicile means physical presence in the state and intent to remain. If you currently live in Texas and do not plan on moving, your domicile is Texas. In an annulment, you have to give notice to the other party and serve them if they are not going to appear in court. However, unlike a divorce where you must wait 60 days before the court can grant your request, there is no waiting period for an annulment.
Do both parties have to be present for an annulment?
Yes. However, if both parties are unable to appear in court, there are some steps you may take to be eligible for an annulment.
What if the other party will not be present or is unable to appear in court?
The other party can fill out a waiver of service dated subsequent to the annulment filing or you have to wait 20 days, giving the other party time to respond.
Do you still need to take care of child custody and support in an annulment?
Yes. Even if the marriage is considered invalid from the start, child support, child custody (as well as property issues) will be evaluated by the court.
How do you get an annulment?
In Texas, you must file a suit. The document is called an Original Petition to Annul Marriage. Information needed for the document includes the names of the parties, names of children if any, the marriage date, the date the couple stopped cohabitating, etc. Among other things, the document needs to list requests for relief and child custody information.
Once you file suit, the other party (your spouse) must be served or a waiver must be obtained. The judge will then decide whether your marriage may be annulled or if you need to seek other options. The judge reviews your case and, if he or she grants your annulment, your Decree of Annulment will be signed.
Contact our Fort Worth Family Lawyers
If you are considering a divorce, contact our Fort Worth family lawyers at (817) 900-3220.