Divorce: Is an Annulment Right for You?

By: Curtis Wiberg

As a divorce lawyer, the vast majority of cases I see, marriages which end are dissolved through divorce, but not all. Legal annulment of marriage in Colorado is a rare occurrence and the grounds justifying annulment are tough to prove. However, there are situations where an annulment is necessary, and it’s important to know what the rights of the parties are in those rare instances. In Colorado, the statute refers to an annulment as a “Declaration of Invalidity.” In some circumstances, despite the lack of a valid marriage, a spouse may still be able to seek relief normally reserved for dissolution of a marriage, such as maintenance (alimony) or division of property and debt.

The ground for annulling a marriage are contained in C.R.S. ֻ14-10-111. The specific grounds set forth in subsection (1) of that statutory section, and read as follows:

The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.

(b) A party lacked the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity.

(c) A party was under the age as provided by law and did not have the consent of his parents or guardian or judicial approval as provided by law.

(d) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage.

(e) One or both parties entered into the marriage under duress exercised by the other party or a third party, whether or not such other party knew of such exercise of duress.

(f) One or both parties entered into the marriage as a jest or dare.

(g) The marriage is prohibited by law, including the following:(I) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;(II) A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;
(III) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures; (IV) A marriage which was void by the law of the place where such marriage was contracted.

The above stated grounds include the “Vegas” marriage done as a dare, or when one or both parties are intoxicated. They also include marriages of under-aged minors who are incapable of consenting to a marriage, marriages among close family members, and marriages where one party lacks the physical capacity to consummate the marriage, unbeknownst to the other party.

Proving the invalidity of a marriage requires “clear and convincing” evidence of one of the above grounds. It should also be noted that if you are married in a different state where that other state allows one of the above conditions to occur for a legitimate marriage, Colorado will honor the marriage.

In practice, though, the most common grounds for annulment are those in which one party fraudulently induces the other party into a marriage or in which one of the parties is already married and is committing bigamy.

With marriages induced by fraud, any lie upon which a party relies to enter into a marriage can arguably become a ground for an annulment. One notable case in which the Colorado Court of Appeals recognized “fraud” was a situation in which one spouse duped the other into marriage in order to obtain a green card and then abandoned the marriage once the green card had been gained. See, In re: Joel, 2012 COA 128. This case, in particular, made clear that the party engaging in the fraud is not entitled to the benefits of a traditional dissolution of marriage proceeding, like maintenance and property division, and that equitable remedies otherwise available in a traditional dissolution of marriage proceeding only apply to the victim spouse.

The other more common ground for an annulment is bigamy. There are occasions where a party “marries” someone who is already married, and then has kids, builds a life with their already married partner, and ultimately to find out that their marriage is a lie. In those cases, courts are still empowered to enter into equitable orders where orders of maintenance, child support, and property divisions can still be made to protect the innocent party from being victimized further. Of further note, children of an invalid marriage are legally considered legitimate to prevent any stigma accruing to those children.

With the exception of bigamous relationships, time limitations are imposed by statute to request a Declaration of Invalidity. In other words, a person who discovers grounds for an annulment but remains in that relationship legitimizes the marriage by doing nothing about it. See, C.R.S. § 14-10-111 (2). For instance, the “Vegas” marriage entered into on a dare and/or intoxication becomes a legitimized marriage after 6 months. The same applies to the party who learns of the fraudulent inducement to marry but lets the situation continue past six months from the discovery of the fraud. With the unconsummatable marriage, that marriage becomes a legitimized marriage after one year. With the case of an under-aged marriage, that union becomes legitimized within two years. In essence, if you learn that your marriage meets one of conditions for being declared “invalid” it is important to act quickly.

As with the ending of a valid marriage, in the case of an annulment, it’s always best to contact a Denver family law attorney to assess the situation and understand your rights and options under the law. Though your marriage may not be valid, your claims for relief just might be.