Annulment in Colorado
Annulment, otherwise known as Declaration of Invalidity of Marriage, is one of the most misunderstood areas of family law. Annulment is not a simple alternative to divorce for people who immediately come to regret their decision to get married. You can seek an annulment only if the validity of your marriage is in question. Simply put, a divorce is the remedy to terminate a valid marriage, on grounds arising "after" the marriage, whereas a nullity proceeding can be brought on the theory that for reasons existing "at the time of the marriage", no valid marriage ever occurred, i.e. the marriage from its inception was either "void" or "voidable".
In order to qualify for an annulment, you must meet one of the following criteria:
- One party did not have the mental capacity to consent at the time of the marriage. Perhaps the most common example is when at least one of the parties was too intoxicated to know what they were really doing.
- One party is not physically capable of consummating the marriage AND this fact was unknown to the other party at the time of the marriage.
- One party was under the age of consent and did not have the permission of their parents, guardian or the court to enter a marriage.
- One party married because of the fraudulent act or representation. This fraudulent act or representation must be something which goes to "the essence" of the marriage.
- One party married under duress either from the other party or by a third party.
- One or both parties married as either a jest or a dare.
- The marriage is not a legal marriage because one of the parties is already married to someone else, the parties are too closely related (ancestor/descendant, brother/sister or aunt or uncle/nephew or niece) or for any other legal reason why the marriage would be declared void.
If you meet one or more of the above criteria, you may be able to file for an annulment but there are very strict deadlines depending on your precise circumstances which you must also meet.
You should also keep in mind that a "voidable" marriage (e.g. because of minority, fraud, or force) rather than "void" marriage, which is invalid per se, is valid unless and until the court declares it to be null. As such, a voidable marriage may also be terminated by a divorce unless the party entitled to have it annulled raises the issue of nullity. Assuming that your marriage is "voidable" and you have the option of seeking an annulment as opposed to a divorce, you should consider that generally the grounds to obtain an annulment (enumerated above) are more difficult to prove than a divorce (irreconcilable differences). There are also additional time restrictions and limitations in bringing a nullity action which are not applicable to divorce proceedings. Depending on the specific facts of your case, including any applicable time restrictions, you may opt to seek a divorce rather than an annulment.
Due to the complexities of these issues, it is generally in your best interests to seek the guidance and advice of an experienced Colorado family law attorney to help you best weigh and balance your options.