Which Do I Need? An Annulment or a Divorce?

  1. Family Law
  2. Divorce
  3. Which Do I Need? An Annulment or a Divorce?

A divorce and an annulment have essentially the same function: formally and legally ending a marriage through a Family Court ruling. But there are differences between the two and it is important to know what your legal options are when ending a marriage.

A divorce is the most common way to end a marriage legally. An annulment is a much more unusual way to end a marriage and isn’t used frequently in modern times. The primary difference between a divorce and an annulment is that an annulment means the marriage in question was never legally valid and never even existed. If this is the first marriage between either spouse and it is annulled, then it would be proper to say you were never married. When a divorce occurs, you will have to say on legal forms that you are divorced.

If an annulment is being sought on grounds other than legal incompetence to contract marriage must show (1) lack of legal consent or that the marriage was not a valid contract and (2) no cohabitation between the parties. E.D.M. v. T.A.M., 307 S.C. 471 (S.C. S. Ct., 1992).

There are several ways in which someone can be granted an annulment. Bigamy, or being legally married to two people at one time, is one such ground. Let’s say, for example, Pam gets married to Steve in 2020 and separates from him later in the same year. Pam then gets married to Jeff in 2021, while the divorce is still pending. Pam’s marriage to Jeff is not legally binding because she did not take the proper steps to end her first marriage. The first marriage is still, however, likely the subject of divorce grounds since the couple entered the marriage legally. S.C. Code Ann. § 16-15-10.

Fraud and duress are both grounds for annulment. Fraud refers to a misrepresentation of something relating to the marriage, including the ability to have children. Duress occurs when you have a reasonable fear of bodily harm. This could include a “shotgun wedding,” if the shotgun is literal.

Incest, mental incapacity, or minor status are all also grounds for an annulment. Incest is not permitted between two people who are related closer than first cousins in South Carolina. Mental incapacity typically refers to intoxication or insanity. Typically, 18 is the age in which a person can legally marry but someone that is 16 can get married with parental consent.

The final ground for annulment would occur when the couple never cohabitated. This ground would likely be burned if the couple stayed together for even a night while married.

There are five grounds for divorce in South Carolina: adultery, habitual drunkenness, physical cruelty, abandonment, and no fault, which is based on the parties living separate and apart for at least one year.

In South Carolina, parties to an annulment can still have a judge decide on issues like custody, visitation, child support, alimony, and property division.

At King Law Offices, we understand the challenges involved in any family law matter. Our goal is to help guide you through this process and listen to your concerns. Contact King Law at 888-748-KING (5464) for a consultation. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.

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