An action for divorce and an action for annulment will terminate a marriage between two people but have a significant difference in effect. A divorce recognizes that a marriage began on a certain date and ended on a certain date, so any rights shared between spouses existed in that time frame. An annulment that is granted declares that the marriage was never valid in the first place and retroactively erases the couple’s existance as husband and wife. Annulment is the appropriate vehicle to dissolve two types of marriage: those that are void ab initio (invalid from the onset) and those that are voidable (valid until one of the parties files suit to have it annulled).
Unlike no-fault divorce actions in Michigan, a spouse seeking an annulment must allege and prove one of six statutory grounds to prevail.
1. Bigamy – a marriage is void ab initio if it is performed while a prior spouse who was not legally divorced is still living. MCL 552.1.
2. Consanguinity and Affinity – a marriage is void ab initio if the spouses are too closely related by blood or marriage.
- “A man shall not marry his mother, sister, grandmother, daughter, granddaughter, stepmother, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or cousin of the first degree, or another man.” MCL 551.3.
- “A woman shall not marry her father, brother, grandfather, son, grandson, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or cousin of the first degree, or another woman.” MCL 551.4.
- Since the U.S. Supreme Court decision in Obergefell v Hodges, 135 S Ct 2584 (2015), same-sex marriage was legalized nationwide and no longer creates a marriage void ab initio in Michigan.
3. Force, Fraud and Nonconsent – A marriage is voidable if the spouses married without freely consenting to the marriage, unless they voluntarily cohabit as a married couple before commencing the annulment action. MCL 552.37. Grounds that have constituted annulment for fraud or nonconsent include the involuntary intoxication of one party at the time of marriage to the extent that free will is destroyed, the refusal of one party to have children, and the undisclosed homosexuality of a party in a heterosexual marriage.
4. No Age of Consent – A person must be at least 18 years old to be legally capable of contracting marriage or at least 16 years old with the written consent of a parent or legal guardian. A marriage of a person under the age of consent is void ab initio and does not become valid from the passage of time.
5. Mental Incompetence – A marriage is voidable if the spouses married and either party did not have the mental competence to consent to the marriage, unless they voluntarily cohabit as a married couple before commencing the annulment action. MCL 552.36.
6. Sterility or Impotency – A marriage is voidable where ALL the folliwng are true: MCL 552.39.
- One of the parties has the physical incapacity to have children;
- That incapacity existed at the time of the marriage;
- The incapacity is incurable;
- the incapacity was not disclosed before the marriage, and;
- The action is brought within two years of the wedding ceremony.
Since void ab initio marriages are considered invalid from their inception, it is technically not necessary to file an annulment action because the marriage does not have legal recognition in the first place. However, spouses can and do file annulments for void ab initio marriages anyway so that they may obtain a clear court order announcing the marriage never legally existed. It tends to clear up confusion for third-party entities that retain information about the existence of the marriage (e.g. Social Security Administration, Internal Revenue Service, banks, etc.).
A voidable marriage DOES require suit to be filed in the circuit court to have the judge declare the marriage void. If the plaintiff fails to prove any of the statutory grounds in an annulment suit (or forfeits the ability to annul due to the subsequent cohabitation as spouses), then the action will fail and the plaintiff will have no choice but to file divorce proceedings to end the marriage.
If annulment actions are more difficult then divorces, then why does anyone ever pursue them? Here are a few advantages:
- The stigma of divorce is avoided, especially if either spouse belongs to a culture or religion where divorce is looked down upon.
- Alimony or spousal support that was awarded from a judgment of divorce in a previous marriage may be reinstated if said payments were terminated by the subsequent marriage.
- Annulment actions do not have the lengthy residency requirements and waiting periods that are required in divorce actions (e.g. must be a resident of the state for 180 days to file, must wait 60 days in a divorce without children or 180 days in a divorce with children to be granted a final judgment).
- The legitimacy of the children born during the voided marriage will be preserved and child support may still be awarded.
However, there are significant drawbacks to obtaining an annulment that you should be aware of:
- Alimony or spousal support after an annulment is extremely rare and almost never granted.
- Since the proof required to obtain an annulment is higher than that to obtain a divorce, legal fees and court costs will certainly be higher. MCL 552.13 provides for an award of attorney fees in divorce or separation actions, but does not provide such an award in annulment actions.
- The spouse’s right to Social Security retirement and disability benefits through the other spouse is eliminated.
- If the parties filed joint tax returns prior to the annulment, the parties will be required to file amended Form 1040 tax returns for every tax year not barred by the statute of limitations to change the filing status from married filing jointly to single or head of household. This may cause the taxpayers to be liable for additional income tax due to the loss of the spousal exemption and the higher income threshold for certain tax credit or deduction eligibility.
Contrary to popular belief, the length of the marriage has no bearing whatsoever on whether there are grounds for annulment in Michigan. Whether you have been married for a day, a week or a year, your eligibility for annulment rests only in the statutory grounds provided. If you do not have or cannot prove grounds for annulment, then your only remedy to terminate the marriage is to initiate divorce proceedings. If you have questions about whether an annulment is right for your situation, do not hesitate to contact the experienced family law attorneys at Kershaw, Vititoe & Jedinak PLC.