Annulment in Virginia…
WTDW Podcast | Episode 27: What To Do When… You Need to Have An Annulment.
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WTDW Podcast | Episode 27: What To Do When… You Need to Have An Annulment.
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:28
Hi, and welcome back to another podcast at Critzer Cardani. Here in Richmond, Virginia. I’m Jackie.
Scott Cardani 0:37
And I’m Scott, Jackie, what’s on the docket for today?
Jackie Critzer 0:37
What To Do When… you want / need / hope to have an annulment.
Scott Cardani 0:42
What is an annulment?
Jackie Critzer 0:45
Well, first of all, an annulment is different than a divorce. Okay, but it is a method to sever a marital relationship, but boy, is it complicated.
Scott Cardani 0:55
Okay, so explain it to us Jackie’s gonna mean a different divorce. So what makes it different?
Jackie Critzer 1:00
Well, a divorce you have to file the other pleadings in the court. You you’re looking at potentially spousal support, you’re looking at equitable distribution, you’re looking at all the things that divorces normally look at. Annulment is really asking the court to consider the marriage null and void. Like it never happened, okay, so you can imagine there are some very specific circumstances and only those circumstances where annulment is even allowed under the law in Virginia. So, one thing aside from it being different from divorce, but one thing is that it requires an element of fraud or duress. So fraud being an intentional misrepresentation of a material fact, and not any material fact. But there are some very specific ones listed in the code.
Scott Cardani 1:48
Jackie Critzer 1:50
Like prostitution – if somebody if one of the parties was a prostitute before they got married, and you didn’t know it and later found out after you got married, you can have the marriage annulled. If you found out within two years of being married, and you file for an annulment within those two years of being married.
Scott Cardani 2:07
So it’s a two year limit?
Jackie Critzer 2:09
2 Year Limit.
Scott Cardani 2:10
Well give us some other ones, what are some other possibilities for annulment?
Jackie Critzer 2:14
if one party or the other was with child or conceived a child within the 10 months after the date of marriage, so if the child is born within the 10 months after the date of marriage, then the marriage can be annuled then. So if you father, a child, who was born six months after you got married, your wife can have annuled. If you learn that, your let’s just say your wife, new wife is due. You don’t know she’s pregnant, because she’s not showing or you just can’t tell whatever the case may be. And she has a baby six months after you get married and you go, the math doesn’t work. We didn’t have sex until we got married. I realized that’s relatively rare, but it happens. Okay. You can divorce her. If it’s an not your baby.
Scott Cardani 3:02
We wouldn’t want to divorce we would want an annulment.
Jackie Critzer 3:03
You can have an annulment. Yes, that’s exactly right. From her for having a baby with another fellow. And also, importantly, if the male is impotent, and she finds out when wife finds out after the marriage and files for annulment within two years, then it can be annuled. The marriage can be anulled at that point.
Scott Cardani 3:29
And it’s like it never happened. And this can be important for lots of reasons. And I don’t know that this is the podcast to go into all the reasons that can be important. But you know, these things we see a lot in the sense of people being dishonest to their spouse. And if you’re you know, the premise, I think of anulment is, if you’re that dishonest at the beginning, that marriage probably isn’t gonna last long anyways. So they kind of make a clean break and allow you to, you know, you’re not a divorcee at that point, because you didn’t really get into this marriage with the full knowledge that you should have had. And so, you know, a marriage has to be built on trust, I don’t know any of that work that aren’t, you know, some level you have to be able to trust your partner. And if you can’t tell them that you’re pregnant, or you’re a prostitute all the way up until the day you got married and continue on afterwards, or one of the other things it’s, it makes for a rocky road. And I think the courts are trying to and the legislature is trying to recognize some options of this fraud basically, or, you know, if the person’s mentally incompetent during the time that the it’s called solemnization, what the heck is that?
Jackie Critzer 4:36
Well, that’s when it’s the ceremonies performed, and everybody is signed on the dotted line and in the ceremony, you are formally married. But there are I mean, there are some circumstances where you might be able to to another marriage where the where the one of the parties was not at the age of consent to marry in Virginia, which is 18. If you find out that this person was so 17 or 16 – I hope they’re not younger than that. Although I know some young people look a lot older than they actually are. But if you find out that you’ve married someone who’s not of age, then it can be void or voidable.
Scott Cardani 5:12
Yeah, there’s, there’s some things with family members, aren’t there, Jackie with, you know, these kinds of voidable marriages kind of things where if you marry a cousin, is that correct? Or is it?
Jackie Critzer 5:23
Cousins are a little different, but aunts and uncles can’t marry nieces and nephews. Yeah, siblings can’t marry one another. The Bloodline needs to be pretty watered down before you can marry a relative. But there are circumstances where that marriage can be boiled avoidable, depending on on what’s been going what level of relation.
Scott Cardani 5:43
Sometimes, you know, again, these are things sometimes you may not find out, maybe you didn’t know, as you’re, you know, you were related. Because the family, one family are particulars isolated from the other families. And, you know, I remember growing up, I had two cousins who I met later that, you know, were my cousins. You know, I knew him. I knew my whole life, but I didn’t realize they were cousins. So it happens. I mean, this is kind of a little more weird, but it does happen.
Jackie Critzer 6:07
Also, importantly, you can’t marry someone if you’re already married. No, it’s, you know, it’s a void. It’s not voidable The difference being void means if it didn’t happen, even though you signed and everybody was there, and there was a witness, it’s not a marriage, it didn’t happen. Then there’s voidable, which is, you know, the siblings got married, they didn’t know they were siblings, even by half. The the code says by half blood. Even if your siblings by half blood, it’s still voidable or void, but there are there are situations where it is absolutely void, and that is when you marry someone, or attempt to marry someone when you are already married. I’m not sure where bigamy is legal. But it’s definitely not legal in the Commonwealth of Virginia
Scott Cardani 6:52
Absolutely, can’t marry animals.
Jackie Critzer 6:55
There’s a lot of things you can’t do. Well, you know, it’s important, though, that this is we from time to time, we get phone calls about oh, I want an annulment. Part of it, I think is rooted in the Catholic Church, or at least it used to be where Catholic Catholics believe that, you know, you’re not allowed to divorce. And so we would sometimes get phone calls about people wanting an annulment because that would be permissible in the Catholic Church to whatever degree.
Scott Cardani 7:20
Again, that’s because of the fraud. You know, it’s you know, these play, you know, there’s a lot of churches that don’t believe in divorce. And a lot of people want to not just the Catholic Church, but they really believe it, you know, hey, I, I got married, I needed to sign. But if you got married, and you didn’t know the truth, you know, I didn’t know Jackie was a prostitute. I’m sorry, Jackie. No, I mean, seriously, that is a big deal or someone..
Jackie Critzer 7:42
Scott Cardani 7:43
Not True… I mean, seriously, you know, these things can be, you know, like, we, you know, you kind of laugh about the input to say anything, but if you get married, and you’re, you’re the other spouse is impotent, and you didn’t know that that’s a big deal. You know, that can really change your marriage relationship, which is kind of things but the real issue, is it the, to me, the real issue isn’t the deficiency, it’s the lack of telling the other person about the deficiency that makes annulment possible.
Jackie Critzer 8:09
Well, and that is exactly right. Because in the code, it all has to do with without knowledge of, if you know, she was or he was a prostitute, or you knew they were fathering or mothering a child in that requisite time period, or you knew he was impotent, and you still marry you can’t later raise that even within your two years, you can’t lay raise that as a grounds for annulment. Now you’re in the grounds of divorce. Because you made a bad bargain. You didn’t like the decision you made. But if you knew about it, it’s no longer fraud, right? Because that’s the intentional misrepresentation of a material fact or hidden truths for the one spouse who would be able to elect to annul.
Scott Cardani 8:49
Yeah, it’s an act of comission or omission, you know, something you lied about, or you didn’t tell about? So.
Jackie Critzer 8:53
So there’s an interesting question that what if that’s interesting? What if the man is impotent, and he doesn’t tell the spouse one way or the other. And the spouse later they get married, finds out he is impotent. And the spouse says, Well, I don’t want an annulment. Can the impotent spouse file for an annulment?
Scott Cardani 9:19
You know, I don’t know if I know the answer. But by the code the way the codes written it, it says yes. But I don’t know if that’s ever been taken. Because I think the problem would be that you could say that he’s the one that committed the fraud. He doesn’t get out. I knew it. He knew it. But I don’t know. But the code doesn’t really read like that. But I think the intent of the code when you read the whole thing, it’s really that misrepresentation. So what do you do, Jackie, when you find out, you’re in that two year window, and you find out that, hey, my wife, six months pregnant, we didn’t have sex prior to marriage. I want out of this thing. What do you have to do?
Jackie Critzer 9:53
Get out, move, stop, stop the relationship. Maybe you can’t move out at the moment. Right? That’s, I mean, that’s very real for people they can’t Just jump ship, sometimes they can’t, they can go be with family, they can get away with friends, they can just cease the relationship. If the intent is to move forward with an annulment, you really cannot continue to consummate and move forward in a marital relationship and cohabitate with that person, if your intention is to annul the marriage. So you got to stop, you gotta stop the relationship.
Scott Cardani 10:24
So if you find out, get out, that’s our little phrase. But you know, again, you have this two year window, total. So if you find out it two years, in one month, you’re in divorce land. You’re outside of two years, in one day, really, you’re outside of that anullment window.
Jackie Critzer 10:38
But if you find out at one year and eight months, and you delay filing till after the two year limit, you’re still out. You have to have it filed within the two years, it’s very, it’s a very strict.
Scott Cardani 10:48
That’s a very good point. So, you know, find out get out. Do everything you can to stop that you cut off the relationship and you say, Okay, I’m done. And get out of that marriage, you know, if worse, comes to worse, at least move to a different part of the house. Separate your finances and do all the things that were really important to show that you are getting out. That you’re no longer cohabitating. A lot of people who really love each other, and maybe this is a big hurdle, somebody can’t get over, they’ll make the mistake of continuing. And she’s like consummating the marriage or doing things afterwards and in and out kind of thing one day, she’s in one day, she’s out. Well, once you’ve done that back, it’s almost like, goodness, yeah, it’s forgiveness, which is, you know, a thing we deal with in divorce all the time, you know, so you gotta be real careful with that. And if that’s really what you want, you need to pause and figure out number one, if that’s what you want, if you want the annulment.
Jackie Critzer 11:42
Scott Cardani 11:42
And then you really got to pause. You gotta wait to make that decision before you do anything else because anything else could jeopardize your anullment.
Jackie Critzer 11:52
So our three takeaways today on annulment and whether and when that’s an option for you, number one, divorce and annulment are not the same. Annulment is to void the marriage or to make it as though it never happened. Which means it wouldn’t include equitable distribution, it wouldn’t include spousal support, it’s an effort to to you can’t erase the marriage. But it is an effort to do that to say this should have never happened. And it does require a second second takeaway it does require some element of fraud or misread material misrepresentation of a material fact. Three of those big ones include, if a party is impotent, if a either party has fathered her mother to child within the 10 months of getting married, and also if one party finds out after they’ve married the other person that the there were there was prostitution involved by the by the non-knowing spouse. And then once you find those three things out….
Scott Cardani 12:52
You got to get out. And you know, remember you have two years to enact this two years is the big one. But when you find out you got to get out. So it’s really important if you’re in this situation to contact a lawyer talking about your options. And again, pause and talk – and figure out what you want to do.
Jackie Critzer 13:08
Well like and subscribe to Critzer Cardani’s What To Do When… podcasts and we look forward to catching up with you next time.
Scott Cardani 13:15
What To Do When…Legal Chat Podcast Outro 11:40
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