What Is the Difference Between an Annulment and a Divorce?

In New Jersey, there are two different ways to move forward with a court procedure that dissolves, or ends, your marriage or civil union. The difference between a divorce and an annulment is that a divorce ends your marriage whereas an annulment nullifies a marriage. Therefore, when you obtain a legal annulment, your marriage is treated as if it never existed. It is also important to recognize that a “legal annulment” is different than a “religious annulment.” A religious annulment can only be granted by a church or clergy and has no legal effect on your marital status with respect to New Jersey state law. A legal annulment does not carry over into your religious system. So, while it might carry some weight for a church to make the ultimate decision whether your marriage is declared annulled in a religious sense, the legal annulment is not binding on the religious institution.

The procedure for obtaining an annulment in New Jersey commences with the filing of a Complaint for Annulment. As with a Complaint for Divorce, it is necessary to provide the Court with information about yourself, your spouse, your children, your marriage and your grounds for your requested relief. You are asking the Court to make findings and enter an Order declaring that the marriage did not exist. 

It is necessary to meet certain legal criteria to obtain an annulment. It is necessary to prove your case just like you would in a divorce. The Court Order at the conclusion of the matter will be a Judgment of Nullity versus a Judgment of Divorce.

The granting of an annulment is governed by New Jersey law, N.J.S.A. 2A:34-1. There are six limited grounds set forth in the statute that, if proven, enable you to obtain a Judgment of Nullity. In order to obtain the requested relief, there must have been some type of fraud or material misrepresentation as to the essentials of the marriage relationship. The statutory grounds are limited to bigamy, duress, non-age, incapacity, impotence, incest, and fraud.

A Judgment of Nullity treats the marriage as if it never existed, therefore, no marital property division takes place, and the doctrine of equitable distribution, which governs the distribution of assets and liabilities in a divorce proceeding, is not applied. Waiving your right to equitable distribution is a significant factor for consideration as to whether you proceed with a Complaint for Annulment or a Complaint for Divorce. Since a judge cannot enter an Order equitably distributing property, in an annulment proceeding the method for distributing property depends on in whose name the property is titled. 

In addition, if you and your spouse have children together, it is important to note that your children are still considered “legitimate” after an annulment. This means that the father continues to be the father unless it is proven that someone else is the father. A judge can also make decisions about child custody, child support and can also award alimony, if appropriate.

When considering dissolving your marriage or civil union, whether by divorce or annulment, you should consult with an experienced family law attorney at Cohn Lifland Pearlman Herrmann & Knopf to determine the best legal option to pursue. Our family lawyers have expertise to guide you in your decision whether an annulment is appropriate in your situation and will discuss the applicable New Jersey law in the context of the specific facts of your case.