Annulment v. Divorce: Which One is Right for Me?
In Wisconsin a couple can end their marriage by divorce or, in some cases, through an annulment. Although many people believe the requirements are the same, they are different under the law. Accordingly, if you are trying to decide between annulment v. divorce, you will need to look at several factors to determine which option is right for you.
Wisconsin Annulment Law
Wisconsin law provides that someone seeking to annul their marriage must meet specific criteria. Specifically, a court can annul a marriage when:
- A party cannot consent to the marriage because of his or her age, mental state, or the influence of drugs, alcohol, or another incapacitating substance, or because they were induced to marry by force, duress or by fraud essential to the marriage. A suit can be brought on this basis by the party, or his or her guardian or representative no later than one year after the filing party learned of the condition;
- The party lacks the physical capacity to consummate the marriage by sexual intercourse, and, at the time of the marriage, the other party did not know of the incapacity. The complaining party has one year after learning of this incapacity to bring suit;
- The party was 16 or 17 years old and didn’t have his or her parent or guardian’s consent or judicial approval to marry, or the individual was under 16. A suit can be brought by the underaged person or their parent or guardian any time before the individual turns 18, but the parent or guardian must bring suit within a year of learning about the marriage; or
- The marriage was prohibited by Wisconsin law. A suit may be brought by either party within ten years of the marriage, except the 10-year limit does not apply where the marriage is not allowed because either party had "another spouse living at the time of the marriage, and the impediment has not been removed under s. 765.24."
An annulment cannot be obtained after the death of either party to the marriage. Someone seeking an annulment must establish one of these conditions and ask permission from a Wisconsin court before one may be granted.
Wisconsin law provides that to establish grounds for divorce, a party must show that there has been an irretrievable breakdown of the marriage relationship.
- If both parties agree, they may file a petition under oath affirming that their marriage is irretrievably broken, or if the couple has voluntarily lived apart continuously for 12 months or more immediately before the commencement of the divorce, and one party swears this before the court, after a hearing, the court must find that the marriage has been irretrievably broken.
- If the two have not lived apart for more than 12 months and if only one person has affirmed that the marriage is irretrievably broken, the court will look at all relevant factors, including the reasons the petition for divorce was filed, the prospects of reconciliation, and if the court finds no reasonable prospects of reconciliation, it must find that the marriage is irretrievably broken.
- If the court finds that there is a reasonable prospect of reconciliation, it will continue the case to not less than 30 days and not more than 60 days later, or as soon as it can be heard. The court may also suggest the couple go to counseling and, at either party's request, or upon its own motion, may order that the couple attend counseling. At the next hearing, if either person states under oath or affirmation that the marriage is irretrievably broken, the court must find the make the finding that the marriage is irretrievably broken.
If both of the parties to a divorce by petition or otherwise have stated under oath or affirmation that the marital relationship is broken, the court, after hearing, must make a finding that the marriage relationship is broken.
Annulment v. Divorce
As the statutes indicate, there are limited circumstances that allow for a Wisconsin annulment. This is not a waiting period for an annulment. The effect of a court granting an annulment is to technically treat the marriage as if it never existed. For this reason, having an annulment may be preferable to some for religious or personal reasons.
By contrast, a Wisconsin divorce requires a 120-day waiting period. However, anyone can petition for a divorce under the law. In Wisconsin, both an annulment and divorce allow the court to divide assets and establish legal custody and order placement of minor children. However, divorce is far more common, and the related laws have evolved from traditional divorce rather than annulment cases. In most instances, annulment will not be an option because the parties won’t meet the conditions.
Attorney Karyn Youso of First Look Family Law has extensive experience advising clients regarding divorce and annulment matters and can help you assess your case and determine your next steps. Contact us today to schedule a consultation.