Ending a marriage is not an easy thing to do. Sometimes a spouse wishes she could wipe the slate clean and make the last few months or years disappear. As an alternative to divorce, marriages in Arizona may be annulled when there is “cause . . . rendering the marriage void.” A.R.S. Sec. 25-301.
The law limits judges’ ability to grant annulments, however, and judges will only grant annulments to those who truly never should have been married in the first place. To qualify for an annulment, the marriage must have been voidable for some reason. If the parties cannot show grounds for an annulment, they will not qualify and must instead seek a traditional dissolution of their marriage.
Grounds for an annulment can be difficult, complex and costly to prove. Some grounds for an annulment may be easier to prove, such as an incestuous marriage, an underage marriage, or bigamy. However, other factors which are also valid, such as mental capacity, fraud, duress, or lack of consent may be more difficult to prove.
Because of the cost and difficulty of proving grounds, annulments are rare in Arizona. Most failed Arizona marriages end in divorce rather than annulment, because unless a couple has a “covenant” marriage license, a divorce only requires that the spouse seeking the divorce believes the marriage is irretrievably broken. A.R.S. Sec. 25-313.3.
Some mistakenly believe that a short marriage or one which has not been consummated may be annulled for those reasons alone. That is not the case. Generally there must be a jurisdictional impediment (e.g., underage marriage, incestuous marriage, or bigamy) or some fraud, duress or misconduct committed in connection with entering the marriage before an annulment will be granted.
Individuals should weigh the advantages and disadvantages before seeking an annulment. Until recently, the main benefit of an annulment was for the person who had acquired significant property during the marriage or whose spouse had incurred significant debt during the marriage. This was because, if the marriage was annulled, the law used to treat the marriage, for property and debt purposes, as if it never existed. The spouse who acquired property during the marriage would keep the property he or she acquired and would not be responsible for paying the debts his or her spouse had incurred.
In a momentous change, however, the Arizona Court of Appeals recently held that community property exists and must be equitably divided between parting spouses whether their marriage is dissolved or annulled (Hammett v. Hammett). With this change, it is likely even fewer Arizonans will seek annulments in the future.
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