Wednesday, May 03, 2006

annulment

Voidable Marriages - otherwise known as an Annulment

From the start, let’s differentiate this topic from my previous post. A void marriage is a marriage that never existed because of some impediment or problem with the marriage itself. A voidable marriage on the other hand is a valid marriage, but for a reason discussed below the State of Texas and the courts will let one of the married parties out of it.

Following are the grounds for an annulment in Texas.

Underage:

Under the age of 14 - Section 6.101 of the Family Code states that a marriage entered into by a person under the age of 14 can be challenged by an annulment proceeding anytime before that child reaches the age of 14. If the child is married before 14, but the lawsuit is filed after the child turns 14, the lawsuit is barred (cannot be filed) unless it is filed within the later of 1) 90 days after the person filing the annulment learned or should have learned of the marriage; or 2) 90 days after the date the child married turned 14. A suit cannot ever be filed if the child married before 14 years of age reaches the age of 18.

(It is important to note that a child cannot file a lawsuit, so any discussion of filing of lawsuits would be by the parent, guardian, etc… of the child. Another important note is that a court, in any under 14 marriage, can give permission if requested.)

So…if a child is married before the age of 14, everyone knows about it, and nothing is ever done, it seems that it is a valid marriage and only a divorce can dissolve it. That is creepy.

At least 14 but under 18 - Section 6.102 of the Family Code states that unless the court allows the marriage, or a parent consents, a suit to annul the marriage can be filed anytime by a parent or guardian before the child reaches 18 years of age.

At this age level, the court has discretion in whether they grant the annulment or not based upon the facts. In the scenario above (under 14) it is not discretionary and the court must grant the annulment.

Note that a parent can consent to this age level marriage.

Influence of Alcohol or NarcoticsSection 6.105 of the Family Code - This one is kind of obvious…if you are wasted when you get married, it can be annulled. To determine if this is the case, the Court looks to whether at the time of the marriage the person seeking the annulment was under the influence of alcohol or narcotics to the level that their consent to marriage is questionable and the person seeking the annulment did not live with the spouse since they sobered up.

ImpotencySection 6.106 of the Family Code - Ouch! I don’t even like to type that word! Bottom line guys, if you marry a girl when you are impotent and you don’t tell her, you could be getting an annulment. The only way this will not happen is if your wife continues to reside with you after learning of the impotency. Next topic!

Fraud, Duress, Force - Section 6.107 of the Family Code – To qualify for this one you must show that the other party used fraud, duress or force to get you to marry them and you did not live with them after you learned of the fraud or were released from the duress or force. In layman’s terms, if they trick you into getting married by lying or whatever, or they threaten you, you may be entitled to an annulment.

Mentally Incompetent - Section 6.108 of the Family Code – This one can be filed by a guardian on behalf of the incompetent person or by the mentally well person. If brought by someone on behalf of the mentally challenged person you must show that they did not have the mental ability to consent to the marriage and that they did not continue to live with the mentally competent person when they learned of the marriage.

A suit brought by the mentally competent party must show that they did not know the other person was mentally incompetent and that when they learned of the mental incompetency they ceased to live with the incompetent person.

Concealed Divorce - Section 6.109 of the Family Code – This one allows an annulment if you marry a person who was divorced from another person within 30 days of the marriage, you did not know this, and when you learned of it you did not continue to live with the person.

You can only use this provision within 1 year of the date of the marriage.

(Note: you will learn later that when you are divorced there is a thirty day waiting period before you can get remarried, unless the court waives the waiting period.)

Marriage within 72 hours of Licensing - Section 6.110 of the Family Code – You learned earlier in my blog (I think) that you have to get a license to get married in Texas (unless it is an informal marriage) and once you get that license you have to wait 72 hours, unless waived by the court. This section says that if you do not wait the 72 hours you can get an annulment.

You can only use this one for thirty days after the marriage.

A few final notes:

A marriage that was otherwise voidable for one of the reasons above disappears if one of the married parties dies;

There is no waiting period – you will learn later that a divorce cannot be finalized until 60 days after the petition for divorce is filed – that is not the case here.

You will notice that there is no provision for the duration of the marriage. I cannot tell you how many telephone calls I get asking if they can get an annulment because they have only been married for a month or a year or whatever. THERE IS NO ANNULMENT BECAUSE YOU HAVE BEEN MARRIED FOR ONLY A SHORT TIME. If you do not otherwise qualify under a provision above, it does not matter if you were married for one day…you must get a divorce.


The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

58 comments:

That Idiot. said...

hmm..what if the person was wasted, mentally incompetant AND the person they married turned out to be a fraud?
I know someone like that.

kiddin.

Chris Schmiedeke said...

Then you are void, or is it voidable?

Anonymous said...

So there is no provision for "Oh my God I'm so stupid what the crap did I just do?!?!"?

As I read this, and other sites, there isn't. But if there is something I can do, is there a time limit to it.. see I'm in the Army and made one hell of a mistake - I'm not even in Texas anymore, but she is! *ugh*

Chris Schmiedeke said...

Not unless you meet one of the qualifications in the list. I dont remember "braindead" being a ground for annulment. Just get a divorce!

It is not much harder to get a simple divorce than it is to get an annulment, the paperwork is about the same.

You can file your divorce wherever your home county is (even if stationed elsewhere) or you could file in the same county where she is.

m said...

I would bet money I know who anonymous is...if the Army accepted you (shudder) then you passed the psychological test and that might rule out braindeath.

I am gonna watch this little thread.

Your wife just might hire Chris. Oops.

Chris Schmiedeke said...

Now that would present an odd conflict of interest question.

m said...

LOL...we'll see...I have to watch my readers. I know exactly who clicks your link and where they are all from...I really hope it is who I think.

There wouldn't be a conflict....well...nevermind, won't go there this time.

melanaise said...
This comment has been removed by a blog administrator.
m said...

I know who it is...

yay.

I also have someone ready to hire you, but I need to email re: that.

sorry I keep deleting comments, but my picture isn't appropriate for your law blog.

Anonymous said...

My husband lied to me about having a child, being a convicted felon, spending time in prison, and having a degree from an accredited university. Do any of these sound like reasons for annulment based on fraud?

Chris Schmiedeke said...

Anonymous, that is tough to answer. It appears that it would be a factual issue for the judge who would determine the severity of the lies as they related to your agreeing to be married.

Sounds like a pretty good case though.

needinfo said...

I have a friend in a Texas prison who wants me to help him get a marriage that took place by proxy during his incarceration. Obviously the marriage has not been consumated and I understand that to be grounds of an annulment. It has been 5 years since the "marriage" took place.
Any advice?

needinfo said...

excuse me.
My friends want to know if he can annull that marriage. I left that out of the prior post.
Thanks........

Chris Schmiedeke said...

need info, did you actually read my post or go straight to comments? I think your answer lies in my original post.

I listed the grounds for an annulment in there. Non-consumated marriages was not in there. I will not tell you that you are wrong, but I will tell you that it is not in the Texas Family Code. If it is a creation of case law (or court rulings) then I am unaware of it. I would check your source.

My advice to your friend is, contact a lawyer.

Anonymous said...

My husband asked me to join a swingers club 4 years into our marriage. We split up after that and have been in a very bad divorce. Is this a case for annulment? I spoke with his ex and she said that they had been swingers. I was totally unaware until he sprang it on me. By the way he is trying to legally steal what little I have left. He is also engaged and living with another woman.

Chris Schmiedeke said...

If those are the only facts...no. Read my post as it lists each possible ground.

Alternative sexual preferences is not one of them.

It sounds as if you are headed down the divorce route anyway, ask your lawyer (you need one), perhaps they have a different perspecitve than me.

Anonymous said...

Hi Chris thanks for this useful page,

I am a forigner married (?) with a USA citizen in USA soil ( Dallas).

I ve moved to the US only for the purpose of marriage using a fidancee visa.

The things is the marriage didnt work so I moved back to my country of birth.

The thing is my wife(?)doesnt want to tell me weater the marriage is still going on or we are divorce.

Considering that I cannot return to the USA since ive done abandoment of the petition to become a lawful resident....

How can I know if im married or not? how can i eventually get a divorce decree ?

Many thanks,
E.

jenny said...

I got married 3 1/2 years ago to a man who was incarcerated in the Texas prison system. *sigh, I know.* He has not been released over the course of our marriage. We have never lived together, nor assumed any debts together, nor consummated the marriage in any way. Would I be eligible for an annulment, or would I have to file a divorce?

Anonymous said...

My daughter married a Mexican national who is in TX on a tourist visa. Within a month of the judge's ceremony, the groom turned out to be an abuser. She came back home and has not seen or spoken to him since. About a month after she came home, she found out she was pregnant. The groom also has not sought to see the child. Is it possible to annul this union?

Chris Schmiedeke said...

anonymous, the answer to your question is in the blog. Does the factual situation you describe apply to any of the grounds listed? If not, then an annulment is not possible...if so, then it is.

Some of the annulment statutes have changed recently with regard as to the annulment of a marriage by a person under the age of 16. The new law changed the age to 18. See sections 6.102, 6.103 and 6.104 of the Texas Family Code for the changes. A link to the code can be found on the right, or you can find it through my website www.chrislawyer.com.

Good luck.

Anonymous said...

i am engaged to a man in the navy, and i wanted to get married to him when he got back to texas in august. the only thing is, he still doesn't have his divorce finalized. he says that all he has to do is have her sign a paper and then turn it into the courts in july, in virginia. can we still get married before the 30-day waiting period is up? will it be legal?

Anonymous said...

What paperwork do you need to file an annulment, where would I find this paperwork, which Dallas district court number do I file at?
Thanks.

Chris Schmiedeke said...

Anonymous, you need a Petition for Annulment which can be found in a form book at the Dallas County Law Library, (George Allen Courts Building, 600 Commerce Street, Dallas) on the second floor. All the forms you need are in those Family Law Form Books.

The specific District court that the case is filed in is determined by the clerk when you file so you do not need to worry about that.'

Good luck.

Chris Schmiedeke said...

Anonymous, there is no way for me to know whether what your future husband is saying is true or not. Whether you can get married within the thirty days depends on the laws of the state in which you get married. A court can waive the thirty day requirement when he gets divorced.

Good luck.

Anonymous said...

I already have a previous annulment, and would like to know when I do get married again do I have to disclose the annulment to the county clerk when my fiance and I go to get the marriage license?

Chris Schmiedeke said...

Anonymous, I am not sure how to answer that questions because I am not sure what you are asking me. If they ask if you have had a marriage annulled, then yes you must tell them. If you are asking if you must tell them if they ask if you were married before, I do not know the answer to that.

S said...

I hope you still check this. Would it be considered fraud if my spouse told me he wanted a family when we married, and after we have begun the immigration process, tells me he doesn't?

Chris Schmiedeke said...

s, it could be, but you would have to prove the elements of fraud to prevail. I think it could be done, but you will need to have a lawyer to pursue it for you.

Whether a judge accepts the argument is a question I cannot answer, but it is worth a try.

Good luck.

TwiceCharmed said...

Where can I find a boiler plate? My "spouse" is threatening me, my ex-husband, my children, my friends if I don't file... I hate to succomb to threats, and I need to file a TRO. In the meantime, I have been told if I don't produce a petition by 1:00 today all hell is about to break loose on me. It's already started, I do not doubt this. I have written other things before, I just need to see an example. Can you take pity on a stupid woman in Dallas,please? How can I make me sound different from anyone else?

Chris Schmiedeke said...

Twicecharmed, I am not sure what you are asking me for...a petition for what?

Typically the best place to find form documents is at the law library. SMU has a library and Dallas County has a law library at 600 Commerce, Dallas 75202 on the second floor. Tell them you are looking for family law form books and they will point you in the right direction.

Good luck.

Anonymous said...

I was in the service and came down to see my family my parents had fallen on hard times and convinced me to marry this girl to get paid more and help them out. I did and it has now been ten years I never saw that girl after the marriage and have no idea where she is now we never consimated the marriage or anything like that. Now I want to get married but what do I do? Do I have to go through a regular divorce or an annulment qualify?

Chris Schmiedeke said...

Anonymous, it is very simple...if you do not qualify under one of the grounds for annulment, then you have to get a divorce. Read my post on annulment in Texas and you will have your answer. Good luck.

Barbara said...

My friend was 16 when she married her husband, who was at that time 20. She is now 17 and would like to get an annulment, but she DID get parental consent to marry him. Does anyone know if she can get an annulment because of her age?

Chris Schmiedeke said...

Barbara, just review my post as to grounds for annulment and that will answer your question.

Better yet, click on my website link the side, go to the resource page and read about it under the "Texas Family Code".

Good luck.

Travis & Kee Kee said...

Chris I'm in the military and so is my husband the other day he told me he didn't want to be wtih me anymore and that he wanted to pursue a relationship with a man after only 7 months of marriage I am also 8 months pregnant. Can I divorce on the grounds of fraud?

Anonymous said...

My wife was married to an American in Brazil and move to the States and remarried to make it legal. They divorced over 4 years ago in the states. We where married 6 month ago. She later found out she was still married in Brazil. Question,,am I legally married? Is this cause for an annulment?

Anonymous said...

Chris, I married a foriegner less than a year ago. Once the green card arrived in the mail. My spouse left. My question, is an anunulement possible. If so, is it possible without my spouses signature since I have no way of getting a signature now.

Chris Schmiedeke said...

Assuming you are in Texas then yes it is possible. Fraud would be the claim. Contact an attorney and file for the annulment.

Good luck.

Chris Schmiedeke said...

Anonymous, please read my post on void marriages and the putative spouse. That should answer all your questions.

No, you cannot get an annulment. Maybe have the marriage found void, but not an annulment.

Good luck.

Anonymous said...

I understand the Tx laws regarding the 72 hour waiting period and "unlike" most readers, I understand what constitutes an annulment vs a divorce...however, I got married during the 72hr wait by a district judge WITHOUT THE SIGNED WRITTEN WAIVER (key to validate the marriage.)In this case, would I need to even do anything to annul this since technically and legally it cannot be recorded as a legal marriage? furthermore, can the person (judge) who performed the ceremonies be fined for a misdemeanor according to (sec 2.204 b.4) since he did not follow the law? Thanks in advance for your reply.

Anonymous said...

question - while stationed at ft sam houston, i married the guy i was dating only to find out afterwards that he had been cheating on me the whole time we were together. is this grounds for annulment or should i proceed with a simple divorce?

Anonymous said...

is it possible to get an annulment for a common law marriage?

Anonymous said...

My husband and I have been married for 11 months. He told me two months ago he never planned on having children. I got married in order to have a family and he was well aware of that fact. He's so scared I'll 'accidentally' get pregnant that he stopped having sex with me 2 months into the marriage. Is this grounds for annulment?

Chris Schmiedeke said...

Anonymous, cheating (adultery) is a grounds for divorce not annulment.

Chris Schmiedeke said...

Anonymous, an annulment in Texas can be granted for the reasons listed in my post no matter how you are married.

Chris Schmiedeke said...

Anonymous, you could try a fraud claim if you can prove it. I suggest you contact an attorney and check with them in your area.

Fraud is difficult to prove so it may be easier to simply file for divorce if you want out of the marriage.

butterfly said...

If I divorced my husband in Texas and without signing a 30 day waiver and remarried someone else in another state not even 24 hours later because I was drunk. Then a month later we split is my divorce voided? And my marriage not legal and not held legally married? I got back with my divorced husband about 6 months after thinking I was divorced and he is saying I am not married because I voided out our divorce decree and that we are still married. I have been with him with out changing my name as my funds have been close to nothing so, never thought about changing my name back to his name. We are having problems getting insurance cause my name is not the same as his last name and we have been together since then for over 11 years thinking we are still married although not using his last name. So I am asking are we still married like he says? And when I married someone else and left him a month later is not a legal marriage cause we are still married? Help so confussed what to believe?

Chris Schmiedeke said...

butterfly, your original Texas divorce was final the day it was entered. There is no way to "void" the divorce. Whether you are married to the other guy is a little more sticky. If you were married in Texas, that marriage would be void. However, you were married in another state. Perhaps you should check the laws in that state or consult with an attorney there as to waiting periods, etc...

Good luck.

Anonymous said...

My brother was married while incarcerated, DEC, made a year since the marriage~. He has NEVER even seen marriage license , it was done with a "stand in". She has not seen him or had any contact since last July, nor did they ever consummate this marriage. She has recently moved and has been seeing other men. She had a child which she CLAIMS that is his but will not allow any of the family see him? The baby is a year old.Can he have this annulled and how? and can it be done while he is still locked up? He is due out sometime this year, but if I can have this done for him while he is still there, I WILL. Oh and i am the sister. thanks

Chris Schmiedeke said...

He can have his marriage annulled, assuming he is in Texas, if he meets one of the requirements for an annulment.

You would have to check with the court in which the case was filed to determine whether he had to be present or not to finalize.

Contact a local lawyer.

Anonymous said...

My husband and I recently got married about a week ago. One of the questions that was asked of us at the Texas courthouse was if we had back child support. I didn't since I recently had my baby whom I support along with supporting him. He just got a child support paper in the mail stating that he has 5,000.00 in back child support. My question is since we had to take an oat pertaining to those questions, will it be possible for me to have my marriage annulled since he clearly has lie to not only to me but also the court?

Jae said...

i am trying to annul my marriag while my husband is still incarcerated. any sugestions out there on how to do this???
jaegray369@yahoo.com

Anonymous said...

Im an international student living in Texas. Just got married about two weeks ago. my wife lied she was single before we got married,but i later find out she has one year old baby in her sister house and she is gay. Also since we got married she did not sleep at the house for a night,Obviously the marriage has not been consummated. Can this consider to be grounds of an annulment.

Chris Schmiedeke said...

Anonymous, you may have a case for fraud. You really need to speak directly with a lawyer regarding this.

Anonymous said...

So, my psycho sister-in-law just got an annulment from her 4th husband on the grounds of permanent impotency unknown at the time of the marriage 5 years ago. Her petition says she didn't co-habitate with him after she found out.

Two small problems: They lived together until she recently moved out AND He isn't and wasn't impotent (she bragged to her sister about her wild sex with him). She lied to her atty who put the lies into the petition.

So, was the annulment effective or would they still be married? I think so.

You?

Anonymous said...

Hi Chris,
I have read the list of grounds for annulment. Do you know of any case law where annulment was granted for other reasons? Also are signatures required on Tx Licenses?
Thanks

Broken Hearted. said...

Me and my Girlfriend got married in Dallas.
Her dad doesn't approve because of our age diffrence..
My wife is 22 and im 32 we didn't date till the past year.. her dad was cool with it. but he never said he would let me marry her so we did it anyway.
Now he is upset and is trying to make us get annulment.
we waved that 72 hour thing.
can he do anything legally to make us get one?
Were the only ones in our familys who got married legally.. were romanian and they have traditions. which is common law marriages.

K.wade1 said...

What if the spouce was arrested for aggravated sexual assault of a minor. Can I get an annulment? We have been living apart for 18yrs.