When is Annulment an Option?

Today, we will discuss annulment, as a possible alternative to divorce. We will discuss what it is, how it differs from divorce, and when it is available. Also, at the end of this post, we will direct you to other posts about when to consider either option.

Annulments are judgments of a court that declare that a purported marriage was never valid. In contrast, divorces are judgments of a court that dissolve a valid marriage. While there is no existing marriage once either of those judgments is entered there are significant practical differences between the two procedures.

For example, in the case of a marriage ending after a prior divorce, the availability of Social Security benefits based on the earnings of the prior spouse may be affected by whether the second marriage is dissolved (i.e., through a divorce) or found to have never been valid (i.e., though an annulment).[1] Depending on the state in which the legal proceeding occurs, eligibility for alimony or spousal support may, also, be affected.[2] The same may, also, be true about property rights. So, be sure to check on those matters with a Family Lawyer in the state of your residence.

There are also differences other than those practical ones. If your purported “marriage” is annulled, then you can honestly say that you were not married. Sometimes, that provides relief to people who do not want to announce a failed marriage (perhaps, it is not their first one, and they do not like to declare that they have had another marriage fail). Also, historically, certain traditional religions did not acknowledge divorces, and so, they likewise did not acknowledge subsequent marriages. But, with an annulment, the problem of the first relationship can be avoided, since there was never a true marriage.

So, when are annulments available? Not surprisingly, eligibility for, and time limits for requesting, an annulment, vary significantly from state to state.[3] The most common ground for annulment is fraud. For example, under Texas law, annulment may be granted to a party if “the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner (that is, the party requesting the annulment) has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.”[4]

Other grounds, depending on your particular state’s laws, may include (as Texas does) that annulment may be granted for certain underage marriages.[5] Interestingly, it may, also be granted if “(1) at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage;  and

(2)  the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.”[6]

Other possible grounds for annulment may include things such as a concealed divorce, impotency, mental illness, and a marriage that occurs too soon after the marriage license is granted (contrary to a mandatory waiting period). Again, these vary from state-to-state, so please consult with a local attorney for information about your particular state’s laws.

A discussion of all of the effects and consequences of annulment versus divorce is beyond the scope of this post. I hope that it has been a primer for you on the subject. We would welcome any comments that you may have about this post.

For further information about when to consider divorce or annulment, please see this post.

To see which steps to take, if you are ready to begin the legal process to terminate the marriage, please see this post and this one





[1] Contact a Social Security Lawyer to discuss how and when Social Security Handbook Section 1853 applies. We do not practice in this area of law, and so, cannot and do not, provide any advice about Social Security benefits nor eligibility.

[2] Check with a Family Lawyer licensed in the state where you reside to learn the legal effect in your particular state.

[3] So, again, check with a local lawyer about this.

[4] See Texas Family Code §6.107

[5] See TFC §§6.102,3,4.

[6] Ibid @ §6.105.



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What Is A Texas Marital Property Agreement (“Post-Nup’”)

Folks who marry young often do not own much property beyond personal effects and, perhaps, some furniture and a motor vehicle of some sort. Throw in some idealistic notions about the assured permanency of their marriage, and you typically get a couple having little to no interest in preparing a Prenuptial Agreement to spell out their respective rights when their marriage ends (as all do, either by death or divorce). But, when that couple has been together long enough to have weathered some of life’s storms together, and perhaps accumulated some property, that couple may then want to do some planning for “what if’s.” A specific kind of Texas Marital Property Agreement, called a “Partition or Exchange Agreement,” can be entered into by that married couple, so as to provide certainty as to what will happen to them when their marriage ends (again, either by death or divorce). That is what we will be discussing today. 

Agreeing to limit or to do away with Community Property

The Texas Constitution now provides that (along with people “about to marry”) “spouses, without the intention of defrauding preexisting creditors may by written instrument… partition between themselves the community interest of one spouse…for the community interest of the other spouse…in other community property then existing or to be acquired.” Further, “the portion or interest set aside to each spouse” shall be that spouse’s Separate Property. And, the income generated by that property can also be agreed to be Separate Property (instead of Community Property).

The Practical Effect of This Kind of Agreement

What this means is that married people (“spouses”) can decide that they do not want to operate under Texas’ Community Property system. Instead, certain property which they acquire will be one spouse’s Separate Property, and other property which they acquire will be the other spouse’s Separate Property. They may or may not agree to keep some property as Community. Spouses who have children from previous relationships, and those who have significant Separate Estates, often find this to be an attractive option for preserving their estates for themselves and their descendants. Importantly, such agreement is invalid if used in an attempt to defraud pre-existing creditors (such as by trying to move property to an estate which those creditors cannot reach).

Right of Survivorship Agreement

As part of their property agreement(s), spouses might also agree that some or all of their Community Property will become the Separate Property of the surviving spouse, upon the death of a spouse. In this regard, it is like a Testamentary Will, except with the advantages of passing property outside of the Probate process. Upon the death of one spouse, the other one automatically becomes the owner of those assets, without any court action being required.

Agreeing to limit or do away with Separate Property

Our Constitution also allows spouses to limit how much, if any, of their property will remain Separate. In other words, spouses might agree that all of their property will belong to the marital community, rather than to either of them separately. In my practice, this option is not nearly as popular as the option of limiting Community Property, discussed above.


Traditionally, the property acquired by married people in Texas was, with few exceptions, Community Property. Our state Constitution now allows married people to change that arrangement, if they would rather have more Separate Property and less (or no) Community Property.

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