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Florida Annulments
Annulments in Florida

In Florida, annulments exist in a void because no family law addresses them. The courts do not assume that any individual has an undeniable right to one. It is not impossible to annul a marriage in Florida, but a person wanting an annulment should consult an attorney to make certain of the requirements.

Florida presumes that marriages are legal and valid. For that reason, a person seeking to obtain an annulment faces a steep burden of proof and must provide strong evidence in favor of annulment.

Over the years, Florida's appellate courts have issued binding precedent decisions that constitute the states annulment law. Since there are no specific statutes in Florida to govern annulment, judges rely on this case law to make a decision to see if a pending case meets the same criteria. This requires a trial and proof of reasons for annulment must be provided.

Florida courts do not grant default annulments. A judge will not order an annulment just because one partner did not respond to a complaint.

Grounds

In Florida, the petitioner must convince a judge that the marriage was never valid in the first place. Like many jurisdictions, Florida distinguishes between void and voidable marriages. A void marriage is one that should never have been permitted in the first place; a voidable marriage is one that had grounds to exist, but a flaw surfaced later that should nullify it. For instance, a marriage based on bigamy is a void marriage; it was illegal from the start. If a spouse lied about something fundamental to his or he partner and he or she married him relying on that, then this would be voidable. To get an annulment, a party must prove one or the other.

A marriage is void and may be annulled when:

  • it is bigamous, because one spouse is legally married to more than one person;
  • it is incestuous because the couple is closely related by blood or marriage; or
  • because one spouse is permanently mentally incapacitated and unable to consent to marriage.

It is still advisable to obtain an annulment even when marriages are void by their very nature.

A marriage is voidable and may be annulled when:

  • one of the spouses lacked the capacity to consent to marriage because at the time of the ceremony, the spouse was suffering from a serious but temporary mental problem or was intoxicated;
  • one of the spouses used misrepresentations to trick the other into entering the marriage. (Not all misrepresentations qualify. A qualifying fraud cuts the essence of the marital relationship. For example, if Sam lies about having high blood pressure that lie is not the basis for annulment; however, if Sam marries Suzie with no intent to live with her as a married couple, the misrepresentation could be the basis of an annulment.)
  • one or both spouses only entered into the marriage because they were under duress;
  • one spouse is underage and entered the marriage without the consent of a parent or guardian;
  • one spouse is impotent and the other spouse did not know it at the time of marriage; or
  • one or both spouses entered into the marriage as a joke.

In Florida, marriages voidable because of fraud can be ratified - that is, made valid - by the mere act of sexual consummation after the marriage.

The Florida court may not necessarily annul a marriage even if it meets every single criterion to qualify for an annulment, if the marriage is consummated after one or both partners learned of the nullifying circumstance. For example, if Sam married Suzie while he was intoxicated, but then had sexual relations with her after "sobering up," the marriage cannot be annulled.

Procedure

Annulment papers must be filed in Florida's circuit courts, which sit in chancery and hear annulment cases because they have equitable powers. Court proceedings are governed by Florida's family law rules of procedure.

To initiate an annulment, the petitioner files and serves a petition for annulment. The petition for annulment explains that the marriage is void or voidable, and the reason why. If the defendant does not agree with the claims in the petition, he or she has the right to file and serve a counterclaim for dissolution of marriage. If the defendant prevails on that counterclaim, the court ultimately grants a divorce rather than an annulment.

Florida law explicitly states that voidable marriages are valid until they're annulled. Therefore, an annulment does not affect the legitimacy of children any more than a divorce. However, the children of a void marriage are not considered legitimate under Florida law, because a void marriage was never valid to begin with. Whether a marriage is deemed void or voidable, the circuit court makes decisions about child custody, support, and visitation through a parenting plan.

Florida annulment law permits the court to grant support pendent lite (temporary alimony) in annulment cases, and requires the wealthier spouse to pay for attorney fees of the poorer one.

After an annulment is granted, however, neither of the former spouses can assert the property rights of a spouse. Neither inherits from the other on the basis of marriage, and neither has a claim to the other's retirement, insurance, or other benefits. The court does not divide the couple's property as it would in a divorce; instead, the couple divides their own property to the best of their ability and restore themselves to the financial position they were in as single people, with minimal help from the court.

Permanent alimony is not ordinarily awarded in annulment cases. However, there is precedent in Florida that if one spouse is an "innocent victim" of the other spouse's wrongdoing, the spouse suffering the wrong may be awarded permanent alimony and attorney fees as a matter of fundamental fairness.

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