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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When is Temporary Spousal Support Awarded in Texas?

As we recently discussed (here), it is only under specific circumstances that a Texas court may award spousal support to a party at the end of a Texas divorce case. If those circumstances do not exist, then the court is unable to make that award. Today, we will look at a related issue: a Texas court’s ability to award Temporary Spousal Support.

What is Temporary Spousal Support? It is financial support that one party to a divorce is ordered to give to his or her spouse during the divorce case. As such, it necessarily terminates at either the conclusion of that divorce case, or earlier, as may be ordered by the court. Its purpose is to protect the welfare of the financially-dependent spouse during the time period for which it is ordered. Temporary Spousal Support is based on the legal duty of each spouse to support the other one during the existence of their marriage to one another; and, even after a divorce case has been filed by one of those spouses, the marriage, and that support obligation, still exist until the divorce is granted.

What types of support might be awarded? Sometimes the temporary support is ordered to be made by one spouse paying money directly to his or her financially-dependent spouse. Other times, the payment of certain expenses, such as rent, mortgage, utilities, or a car note, is ordered as Temporary Spousal Support. In either case, the court can consider that support awarded and paid when dividing the parties’ Community Estate at the end of the divorce case.

So, how does the court determine whether to order temporary spousal support? The easiest way is when the parties have made agreements about it. Without such an agreement, however, the court will need to hold a hearing, and consider the financial evidence that is provided by the parties. Such evidence will necessarily include information as to each party’s earnings and earnings capacities; what bills and other liabilities exist, and the necessity of maintaining those bills and liabilities.

How is it proved to be needed? The party seeking the temporary spousal support has the burden of proving that it is needed in a particular case. Consequently, he or she will need to prepare a Financial Information Statement, and obtain relevant records such as the tax records of the parties. Most other documents, such as bills, are Hearsay, and can only be admitted (over objection from the opposing party) by the laying of proper evidentiary predicate. While the broad, technical, and often complex issues of Courtroom Evidence are way beyond the scope of this writing, suffice it to say that careful thought must be given ahead of time as to which documents are material, relevant, and admissible under our law. The courtroom is not the place to “wing it.”

Whether temporary support is awarded often determines if a party will be able to make it financially though the divorce. Consequently, it should be taken seriously.

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When Is “Alimony” Awarded in Texas?

When a divorce seems likely, we often are asked about whether one spouse might be required to make support payments for the other spouse. Although, some folks call such support payments “alimony,” Texas does not have an actual alimony system. Instead, Texas law provides for “Spousal Support.” While all of the differences between alimony and spousal support are beyond the scope of this piece, suffice it to say that spousal support is a considerably more limited support system than is traditional alimony. 

First, it is worth noting that sometimes parties will agree to so-called “Contractual Alimony,” perhaps for tax avoidance issues. That subject will be reserved for a later blog post. The same is true for the “Temporary Spousal Support” which a court might Order for just while the divorce case is pending.

A party seeking spousal support in Texas (after the divorce case is over) must first demonstrate that he or she “will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:

(1)  the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:

(A)  within two years before the date on which a suit for dissolution of the marriage is filed; or

(B)  while the suit is pending; or

(2)  the spouse seeking maintenance:

(A)  is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;

(B)  has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or

(C)   is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.” Tex. Fam. Code, Sec. 8.051.

So, the first step is determining whether the person seeking the support has enough property to meet his or her “reasonable minimum needs.” If the answer to that question is “yes,” then the analysis can stop. Post-divorce Spousal Support cannot be awarded to that person.

If the answer to that first question is “no,” then the analysis will continue: can the person seeking spousal support show that the other party has been involved in ‘family violence” as described above? Is the person wanting support incapacitated by a disability? Can the party seeking spousal support show that this marriage has lasted for ten (10) tears or longer, and that he or she is unable to earn enough to meet that person’s minimum reasonable needs? Or, is that person the care-taker of a disabled child of the marriage, and so, is unable to work enough to provide sufficient support?

If the answer to any of the above questions is “yes,” then the Court may award Spousal Support. Otherwise, the court may not.

For the answers to more frequently asked questions about Texas Family Law, check-out our other blog posts on this sight and our FAQ page.

And, you can sign-up  to receive our newest blog posts here.

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