Annulment of Marriage

 

General Information

If a marriage is annulled, it is treated as if it never existed. That is, the rights and remedies that follow the dissolution of a valid marriage – division of marital property, the award of maintenance (alimony), the ability to collect social security/workers’ compensation/health insurance/etc. benefits from the other spouse – are no longer available to either party.

If a court declares a marriage annulled, it is considered void/invalid. This is not something a court will issue casually. Depending on the reason(s) for seeking annulment, a party has either 90 days or 1 year to file for annulment. Statutory grounds providing for annulment include:

  1. Influence of alcohol, drugs, or other incapacitating substances
  2. Fraud involving “the essentials of marriage”. Examples: a false claim of pregnancy when a lack of pregnancy was known, a false agreement to have or not have children, a marriage without love or solely for material gain
  3. Mental incapacity or mental disability
  4. Bigamy (multiple simultaneous marriages by at least one of the parties. Occurs if one of the spouses was still married when the marriage in question began.
  5. Incest, or marriage between persons closer than second cousins
  6. One or both parties to the marriage was under age 18 at the time of the marriage and proper legal consent for the marriage was not first obtained
  7. Improper solemnization of the marital ceremony (a proper person did not preside over the ceremony or there were not at least two other witnesses)

There are additional grounds for annulment that infrequently apply. See KRS 403.120.

Purpose/Necessity

Annulment of marriage may be desirable under any of the following circumstances:

  1. The requesting party believes the marriage was a sham and wants it to be treated as if it never existed
  2. One or both parties prefer to avoid marital property rules which apply if there was a valid marriage but not if the marriage is annulled. All property acquired after a marriage is “marital property” by default, which must be divided by the court “in just proportions,” which generally means divided in half. KRS 403.190.
  3. One of the parties wishes to avoid paying spousal maintenance to the other, which is only available following a valid marriage. See KRS 403.200.
  4. The parties wish to keep their options open after terminating this relationship but are forbidden from remarriage on religious grounds
  5. One or both parties would like to end the marriage but prefers not to do so through divorce or legal separation, and the proper circumstances exist for annulment

Frequently Asked Questions

  • How difficult is it to obtain annulment of marriage?
    • Kentucky statutory law concerning marriages is to be construed to “strengthen and preserve the integrity of marriage and safeguard family relationships.” KRS 403.110(1). Therefore a Court will closely scrutinize a request to annul or declare invalid a marriage. The Petition and other documents must be properly and timely filed in accordance with statutory requirements. One or more grounds for annulment must be proven by the party requesting the annulment. It is not a simple process but it certainly can be done.
  • By when must the Petition for Annulment of Marriage be filed?
    • The time period in which the Petition may be brought depends on the grounds for seeking annulment. See KRS 403.120(2):
      •  Within 90 days after obtaining knowledge of the condition:
      1. Mental incapacity or mental deformity
      2. Lack of capacity to consent due to alcohol, drugs, or incapacitating substances
      3. Force or duress
      4. Fraud involving the “essentials of marriage”
      5. Lacking the physical capacity to consummate the marriage
      •  Within 1 year after obtaining knowledge of the condition – all prohibited marriages including those involving:
      1. Incest
      2. Bigamy
      3. One or both of the parties was a minor and proper consent was not obtained
      4. Same sex partners
      5. Invalid solemnization
      6. Lack of witnesses
  • May a Petition for Annulment be filed after one of the spouses has died?
    • Yes, according to KRS 403.120(2), the Petition may be filed by the surviving spouse if the reason for challenging the marriage was because:
      1. One of the parties lacked the capacity to consent to the marriage because of mental incapacity or deformity
      2. One of the parties lacked the capacity to consent to the marriage because of the influence of alcohol, drugs, or other incapacitating substances
      3. One of the parties was induced to enter into the marriage by fraud or duress
      4. One of the parties was induced to enter into the marriage by fraud involving the “essentials of marriage”
  • Does annulment affect the validity of a will?
    • According to KRS 394.090, “[a] will shall not be revoked by the marriage of the person who made the will.” Accordingly, since a marriage does not affect the validity of a will, a declaration that the marriage was invalid also has no effect on the validity of a will. See Knott v. Garriott, 784 S.W.2d 603 (Ky. Ct. App. 1989).
  • If annulment proceedings have begun, may they be abandoned?
    • Yes. A motion by either or both parties may request to dismiss the annulment action.
  • If annulment proceedings have begun, can a divorce be obtained instead?
    • Yes. Occasionally, the question of annulment is brought up in response to a divorce petition. If that is not the case, either party may move to convert the action into a divorce action by arguing that the marriage is irretrievably broken and that only divorce is appropriate.

Legal Services Offered and Cost

Annulment of Marriage

Legal fees: hourly rate

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