Can I get an annulment instead of a divorce?
Annulments in NC
Annulments are court orders signed by a judge stating that marriage never existed. Often times, you do not have to meet the one year separation requirement that divorces have in NC. For many people this can seem like a more attractive alternative to a divorce. There are certain legal situations where there are advantages to annulment. If you do meet one of the grounds for annulment listed below, it may well be worth it to spend the extra time and money to obtain one.
Unfortunately annulments are rare in NC because there are very limited grounds to obtain one, they are usually more expensive (because a full trial has to be held) and take longer to obtain than a regular divorce.
There are only five grounds for an annulment in NC.
- One of the members of the marriage was physically incapable of consummating the marriage (in other words, one of the members was physically incapable of having sex). A medical doctor would have to testify to this in court to prove it.
NOTE: It is not enough that the parties to the marriage never had sex. They must have never had sex BECAUSE they were incapable of having sex.
- One of the members of the marriage was mentally incapable of understanding what the marriage was at the time of the marriage. It cannot be used if the mental incapacity arose after the marriage date and a doctor will have to provide evidence of that incapacity.
- One of the parties was legally underage. The marriage age in NC is 16, though there are exceptions that allow under 16 to be married.
- The marriage was incestuous. For this purpose, a marriage between relatives closer than first cousins is incestuous and could be annulled.
- The marriage was based on the lie that the wife was pregnant. This has other requirements, such as you must separate within 45 days of the marriage date to claim it as grounds. Presumably, the court assumes that after 45 days you discovered the lie and decided to remain in the marriage anyway. Also this grounds requires a year separation just like a divorce.
One other point about annulments. Once a couple has a child of the marriage, the judges become much less likely to order an annulment, no matter what the grounds.
If a marriage is bigamous, then it is automatically voidable. What this means is that if one of the parties is already is already married when the current parties were married, then the second marriage is void and never existed. Note that although it happens automatically, it is most likely going to be necessary to obtain a court order declaring the marriage to avoid confusion going forward.
Certain religious faiths have programs to obtain an annulment as well. These religious annulments have no effect on legal annulments and even if you have a religious annulment, you will still need to obtain a legal annulment to receive the legal benefits of an annulment in NC.