Alternative to a divorce?
First off, what is an annulment? In Texas, an annulment is an Order from the Court stating a marriage never existed.
Now, before you get too excited, you have to know that annulments are notoriously hard to get in Texas. There are strict requirements that you must prove first to avoid a divorce.
Let’s discuss some of these requirements.
Can I get out of this marriage?
Here’s our scenario, Brittany just married Jason, and within months she decided that he was truly the deadbeat her parents had always claimed that he would be, however, Brittany doesn’t want to forever be labeled as “divorced.”
If Brittany and Jason live in Texas then they may be able to have their marriage annulled instead of going through a full blown divorce.
Texas lists several ways you can have a marriage annulled. Unfortunately, “I made a mistake” isn’t on the list.
I’m only 17, what was I thinking?
Here’s our scenario, Brittany is over the age of 16 but under 18, and somehow convinced a County Clerk into issuing her a marriage license and she just ran off and got married.
If Brittany didn’t have the consent of her parent or her managing conservator, then a parent, conservator, or next friend may suit in Court to have Brittany’s marriage annulled. However, this suit must be brought within 90 days of the marriage because after the 90th day, the suit to annul is barred by law.
Also, if the suit isn’t brought before Brittany’s 18th birthday, then it is barred as well.
Because Brittany is under 18, the Judge will hear the case without a jury and the Judge has discretionary power to grant the annulment, and he or she can take the welfare of the parties and whether or not Brittany is pregnant into consideration.
Over age 18, but just shouldn’t have got married
Let’s presume that Brittany and Jason are over 18, but they just shouldn’t have gotten married, what can they do? Well, annulments aren’t meant for people that just don’t get along. Annulments are for couples that shouldn’t have married in the first place. For example:
Drugs & Alcohol
If either party was under the influence of either drugs or alcohol at the time of the marriage, and because of the drugs or alcohol, lacked the capacity to consent to marriage, and the parties did not cohabitate after the effects of drugs or alcohol wore off, then they petition the Court for an annulment.
What does this mean? If you wake up married in Vegas after a night like The Hangover, then you can seek an annulment.
If either Jason or Brittany are impotent, for either physical or mental reasons, at the time of the marriage and the party filing for the annulment can show that he or she did not know of the impotency before the marriage, then that party can petition the Court for an annulment as long as they did not cohabitate after learning of the impotency.
What does this mean? If you find out on your wedding night that your spouse is impotent, and you say, “that’s ok baby, I love you anyway and didn’t marry you for the sex,” you can’t change your mind and seek an annulment, you have to seek a divorce.
Fraud, Duress, or Force
If Brittany used fraud, duress, or force to induce the Jason into entering the marriage, then Jason can petition the Court for an annulment as long as he did not cohabitate after learning of the fraud or since being released from the force/duress.
What does this mean? If you just underwent a shotgun-wedding, or if your spouse told you that she was pregnant/rich/in love, and she really wasn’t, then you can seek an annulment.
If Jason did not have the mental capacity to consent to the marriage, or did not have the capacity to understand the nature of the marriage ceremony, then an annulment may be possible.
Jason, or a guardian, can seek to have the marriage annulled, however, Jason cannot have cohabitated with Brittany during a period when he understood the marriage ceremony, and there could not have been cohabitation since the period. Also, Brittany can seek annulment as long as she did not know of the mental incapacity at the time of marriage, and cannot have cohabitated with Jason since learning of it.
If a Brittany learns that Jason has been divorced within the 30 days before their marriage, at the time of marriage Brittany didn’t know, and a reasonably prudent person wouldn’t have known, and there has been no cohabitation since learning of it, then Brittany can petition the Court for an annulment before the first anniversary of the marriage.
If the parties get married and fail to wait the mandatory 72 hours after issuance of the marriage license, then either can petition the Court for an annulment within 30 days of marriage.
–Authored by Emily D. Walterscheid,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479