Annulment mediation may seem counter-intuitive. Why mediate something you are trying to undo? While both divorce and annulment can end a marriage, and one would file either action in the Probate and Family Court, the legal basis for each is very different. A court-granted annulment, however, finds no legal union ever existed. This post examines grounds for annulment under Massachusetts law. We explore whether annulment mediation can be an effective tool for reaching resolution in a less costly, non-confrontational way.
VOID AND VOIDABLE MARRIAGES
In an annulment, the Court finds a marriage is not allowed under the law and the spouses move forward as if the marriage never happened. The Court grants an annulment if it finds a marriage is void or voidable. Annulment mediation may make sense depending on the benefits to each party and the strength of an annulment case.
A void marriage is not a legal marriage in the first place. Here are two examples.
Massachusetts does not allow marriages between close relatives, by blood or marriage. A marriage is void if it involves incest, consanguinity, and affinity. So, a marriage is automatically unlawful if someone marries her or his parent, grandparent, stepparent, sibling, child, grandchild, niece or nephew.
A marriage is also void if a spouse proves she or he did not know the other spouse is a bigamist. A bigamist is someone who marries again when she or he is already in a marriage with someone else.
A voidable marriage is one that involves a problem at the time of the marriage, but the Commonwealth will allow the spouses to stay married anyway. For example, one spouse can argue the other was not mentally capable to consent to the marriage, so the marriage should not be allowed.
There are other reasons for the annulment of a voidable marriage. A voidable marriage may involve a spouse being under age 18 at the time of the marriage. Eighteen is the minimum age allowable to marry in Massachusetts without parental permission. Hiding material information from a spouse may also make a marriage voidable. For example, one spouse may seek an annulment after learning that the other spouse has multiple felony convictions. Likewise, if one spouse is incurably impotent but the other spouse envisions raising a family, the spouse who wants a family may serve a Complaint for Annulment on the impotent spouse.
A spouse can oppose an annulment by seeking to affirm the marriage in the Probate and Family Court.
If there’s an issue as to whether a marriage is valid, annulment mediation may help to find a creative resolution.
Consider the following scenarios. Suzanne and Tony have a wedding ceremony in Rhode Island in 2005. Thereafter, they live as husband and wife in Massachusetts for 13 years. They have a 10-year-old daughter, Yolanda. Suzanne and Tony separate in 2018 and Tony moves back to Rhode Island. Suzanne receives a letter from a woman named Zooey seeking support payments. For the first time, Suzanne learns that Tony allegedly never dissolved a marriage to Zooey, whom he left in 2004.
Wanda, a Massachusetts resident, falls in love with Victor, whom she meets on a Caribbean cruise. Victor is a Brazilian citizen. The couple marries in Massachusetts in a Catholic church (Wanda is devoutly religious). They live as husband and wife in the Commonwealth for two years. Wanda files for annulment in the Probate and Family Court. Wanda states Victor tricked her into marrying him for immigration purposes (to get a green card).
Skilled divorce mediators can work together with experienced family law attorneys and the parties. They are strong communicators able to resolve disputes over the division of marital property, and custody and visitation issues. This minimizes the cost and contentiousness of full-blown divorce litigation.
CAN MEDIATION HELP TONY AND SUZANNE?
Regarding Suzanne and Tony, if Zooey’s claim is not found to be true, divorce mediation could proceed. However, if Tony is still legally married to Zooey when he weds Suzanne, he is a bigamist. This means the marriage to Suzanne is void under Massachusetts law.
Because an annulled marriage is seen legally as invalid from the start, a probate judge cannot divide the marital estate or award alimony. Moreover, Massachusetts law considers Yolanda to be born out of wedlock to single parents. Tony’s paternity must be re-established for a court to issue child support, custody and visitation orders.
To obtain an annulment, a spouse files documents with the Probate and Family Court. These documents include the Complaint for Annulment, a Certificate of Absolute Divorce or Annulment Statistical Information and financial statements. Because Suzanne and Tony are parents, a child support guidelines worksheet and an Affidavit Disclosing Care or Custody Proceedings form also are mandatory. As in divorce actions, service of process must be made to the party against whom annulment is being sought. This includes an annulment complaint, notice, and domestic relations summons.
WANDA AND VICTOR
In the other scenario, to obtain an annulment, Wanda must prove that Victor deceived her. It is tricky for Wanda to prove that she married for love, but Victor married for immigration reasons. Wanda’s annulment may not be granted if she knew, or should have known, about Victor’s interest in a green card, but agreed to marry him anyway. This poses a particular challenge for a divorce mediator, especially if Victor wants to file an affirmation of the marriage with the Court.
Fraud claims prompting annulment actions more often involve a party withholding from the other an inability to conceive.
Civil annulment in the Probate Court differs from a religious annulment. Because of her strong Catholic faith, Wanda prefers an annulment. The Catholic Church is critical of divorce. However, if she proves Victor misrepresented to her, Wanda may be able to remarry in the Church. A diocesan tribunal likely would issue a religious annulment if the Probate Court grants Wanda an annulment.
Victor and Wanda’s marriage is relatively short-term and childless. So, a divorce mediator working with the couple and their attorneys will address whether a no-fault divorce is preferable to the annulment and affirmation actions. This issue arises because a no-fault divorce is more certain and will essentially put the parties back to where they were pre-marriage. On the other hand, the outcomes of the annulment and affirmation actions are less certain and the cases may be more contentious.
Would you like to learn more about annulment mediation or are you looking for an experienced Massachusetts family law attorney? Call (866) 995-6663 to schedule your free consultation. Just be clear to indicate whether you would like an attorney consultation or mediation consultation as the latter requires both parties to come into the office.