Divorce vs Annulment in North Carolina
When a marriage has run its course and is simply no longer working, married couples in North Carolina have two options for legally ending their relationship: a divorce or an annulment. While both serve a similar purpose, there are distinct differences between the two.
Divorce vs Annulment
In simplest terms, a divorce – legally known as an absolute divorce – is a complete and final end to a valid marriage. Divorces are accompanied by a court order known as a Decree of Divorce and often come with collateral court orders that address issues such as equitable distribution of marital property, alimony, child custody, and child support.
In contrast, while an annulment also marks the legal end of the relationship, the annulment declares a marriage null and void and treats the marriage as if it never existed.
In order to qualify for either divorce or annulment, the couple must have been separated for at least one year and one day.
Grounds for Annulment
Despite common misconception, an annulment is not easier to obtain than a divorce and the length of the marriage is irrelevant to whether or not a marriage can be voided via annulment. In North Carolina, there are only a small number of circumstances that make a marriage voidable. These include:
If the parties are closely related by blood, the marriage is voidable and can be annulled. North Carolina law prohibits marriage between family members who are related “nearer than first cousins,” which can include siblings, parents and children, and grandparents and grandchildren.
If one or both parties were under the age of 16 at the time of the marriage and married without their parent’s consent, the marriage may be voidable. However, if the parties were either pregnant or gave birth between the ages of 14 and 16, the marriage is considered valid and cannot be annulled unless the child is no longer alive at the time the annulment is filed.
False Pretenses/ Fraud
If one party entered into the marriage based on fraudulent representations by the other party, the marriage may be voidable. This typically applies to couples who married because one spouse was led to believe that the other was pregnant with their child. Other examples of fraud include lying about one’s age, lying about one’s financial situation, or lying about one’s ability to have children.
If one party is unable to consummate the marriage, the marriage may be voidable. However, the party seeking the annulment must prove, through medical diagnosis by a doctor, that the impotence existed at the time of the marriage and is incurable.
Lack of Capacity
If one or both parties lacked the mental capacity at the time of the marriage to understand the “special nature of a contract of marriage, and the duties and responsibilities which it entails,” the marriage may be voidable. This could include situations where one party was under the influence of drugs or alcohol at the time of the marriage, or where one party was mentally incapacitated.
If one party was forced or coerced into the marriage, the marriage may be voidable. This could include situations where one party threatened physical harm or financial ruin if the other party did not agree to the marriage.
Polygamy is illegal in North Carolina, so if one of the parties was already married at the time of the marriage, the second marriage is void and can be annulled. This is the only circumstance where the marriage is considered automatically void by law. It is important to note that bigamy is a Class I felony in North Carolina, and a conviction will carry a minimum sentence of three to twelve months in prison.
Regardless of the existence of any of these circumstances, besides bigamy, any marriage followed by a year of cohabitation (living together as a married couple) and the birth of a child cannot be annulled.
SeiferFlatow Can Guide You Through the End of Your Marriage
At SeiferFlatow, we handle all aspects of legally ending your marriage, including annulment. We know that navigating the process of divorce or annulment can be complicated and confusing, but you can trust our family law team to compassionately guide you toward your ideal outcome. Contact our Charlotte office to get in touch with one of our attorneys today.