Getting an Annulment vs. Divorce in Arizona
As you consider your options for divorce in Arizona, you might be wondering what the difference is between an annulment and a divorce. In this article we will cover some basics about marriage, the difference between an annulment and divorce, as well as common law marriage, and covenant marriage.
Because marriage is a legal contract, you need to take legal action to end the marriage. There are two options for legally ending your marriage, divorce or annulment. Divorce is dissolution of marriage. When a spouse petitions for divorce, the divorce is not final until the court issues the divorce decree. A divorce decree is the final order of the court ending the marriage.
Arizona is a no-fault divorce state. This means that the spouse filing for divorce doesn’t have to prove that the other spouse has done something wrong or broken the marriage. The court must merely find that the marriage is “irretrievably broken.” The divorce will eventually happen even if only one spouse wants the divorce.
Either spouse can initiate divorce proceedings as long as they have lived in Arizona for the last 90 days. The divorce must be filed in superior court where either spouse lives.
Although Arizona is a no-fault divorce state, the legislature did establish a second type of marriage in 1998. This is a called a covenant marriage. In a covenant marriage, both spouses enter into a contract that they will not divorce. The standard then for divorce in a covenant marriage is higher than in standard marriage.
What is an Annulment?
Both a divorce and an annulment legally dissolve the marriage. In an annulment, once it is granted, it means the marriage never existed. Although an annulment typically happens after just a few weeks or months of marriage, it can happen at a later period in the marriage as well.
When an annulment is granted the court decides that the legal relationship of marriage could not be established between the two individuals. In Arizona, annulments are granted when there is some circumstance that would make the marriage invalid.
Getting an Annulment in Arizona
Void vs. Voidable Marriage
A void marriage is invalid from its beginning. In Arizona, it still requires the legal action of an annulment, even though it is not valid from its inception. The reasons a marriage may be void in Arizona include the following.
- There was a blood relationship between the spouses such as siblings (both full and half blood), grandparents/grandchildren, niece/uncle, aunt/nephew, and first cousins.
- The marriage is between people who are the same sex.
A voidable marriage is one that remains in effect until one of the spouses chooses to legally annul the marriage. In granting the annulment, the court must decide that there was one of the following obstacles to the marriage that makes the invalid.
- A prior marriage that is still in effect
- One of the spouses was underage
- Lack of mental or physical capacity
- Inability to consummate marriage
- Absence of a valid license
- Duress (being coerced or threatened)
- A party to the marriage is a bigamist, concealed a criminal past, or communicable disease
- Fraud and misrepresentation of religion
- Other grounds that the court finds are a valid basis for the annulment
A legal annulment is different from a religious annulment. After the court grants a legal divorce or annulment the couple can then seek a religious annulment.
Annulment of Same Sex Marriage in Arizona
In a recent case in Arizona (Surnamer vs Ellstrom, 2012), a same-sex couple living in Arizona had been married in Canada. They sought an annulment under Arizona’s law declaring same-sex marriage void. In this case, the couple agreed to the split and had made decisions about how to handle joint property and debts.
They filed a petition for annulment in superior court. The superior court refused to grant the annulment because the marriage was void and prohibited under Arizona law. The court reasoned that since “no marriage exists in Arizona, there is nothing to dissolve or annul.”
The couple appealed the decision to the court of appeals of Arizona. The court of appeals decided that the superior court was incorrect in its decision. Under Arizona law, the appeals court said that the superior court may dissolve a marriage and decide it is void because there was some reason that makes the marriage void.
It also decided that the superior court is authorized to divide the couples’ property when granting the annulment under Arizona law. The Court of Appeals goes on to say that even if the marriage wasn’t valid, an individual can still claim, as part of the property settlement, labor and money that was contributed to the invalid marriage.
Getting a Divorce in a Covenant Marriage
In Arizona there is also another form of marriage called a covenant marriage. In a covenant marriage spouses enter into a contract that they will not divorce after receiving premarital counseling. The divorce process in a covenant marriage is the same. However, the court must find that certain things happened during marriage to grant a divorce.
In divorce proceedings the spouse who starts the divorce is called the petitioner spouse. The other spouse is referred to as the respondent.
In covenant marriage divorce proceedings the court must find one of these conditions.
- Spouses have been living apart continuously without reconciliation for at least 2 years or 1 year from their legal separation.
- The respondent spouse habitually abused drugs and/or alcohol.
- Both spouses agree to the divorce (as opposed to no-fault divorce where only one spouse is required).
- The respondent spouse has committed adultery.
- The respondent spouse has committed a felony and has been sentenced to death or imprisonment
- The respondent spouse has abandoned the marital home for at least a year and refuses to return.
- The respondent spouse physically or sexually abused the spouse, child, or other relative living in the home.
- The respondent spouse has committed domestic violence or emotional abuse.
Is there Common Law Marriage in Arizona?
Many people are aware of common law marriage. When a couple who has lived together for a certain period of time, and hold themselves out as married, some states will recognize a common law marriage.
You cannot establish a common law marriage in Arizona. However, depending on the circumstances, a common law marriage established in another state might be recognized as valid in Arizona
Even though a common law marriage may not be established in Arizona, couples that are not married might still have joint property and child custody issues when splitting up that may need to be addressed through separate legal processes.
What is the Process for Annulment?
The process for an annulment is similar to the process for getting a divorce. One spouse files in Superior Court. You must have lived in Arizona for 90 days or more. Decisions will need to be made regarding children under 18 as well as any joint property. If the court grants the annulment, the legal status of the individuals will be what it was before the marriage.
It is possible when filing for an annulment that the judge will decide not to grant it. If this is the case, one of the spouses can choose to file for divorce.
If you are ready to start your annulment or divorce process, Arizona Statewide Paralegal can prepare all the paperwork for you, file it with the court, ensure your spouse receives legal notice, track deadlines, and finalize your case. To learn more about our document preparation services for annulment and divorce, go to our page here. Call us at (520) 327-4000 Tucson or (602) 253-1515 Phoenix if you have additional questions about the process.