Annulment differs from divorce in that it addresses defects in a marital relationship occurring at the time of the formation of that relationship. Thus, if a marriage is illegally formed, when it is annulled the parties regain their legal rights and responsibilities as they existed before the marriage occurred. By contrast, a divorce deals with problems in a marital relationship arising after the marriage is formed. Traditionally, after a divorce the parties have continuing legal status as exspouses involving division of property, custody of children, and alimony.
Annulments are becoming similar to divorces in that with annulments courts may now divide marital property, order the payment of spousal support or alimony, or decree nearly anything that would be common upon a decree of divorce. Unlike with divorce, however, certain rights or entitlements such as worker’s compensation benefits or alimony from a previous marriage that may have ended upon marriage will be restarted upon annulment, because the decree legally makes the marriage nonexistent.
Grounds for annulments and prohibited marriages are varied. Insanity, fraud, force, duress, impotency, being underage, and polygamy are all leading grounds for annulment. There are also a few more creative grounds. Colorado, for instance, has an annulment provision considering if the act were done as “Jest or Dare.” A couple of states will also make a marriage void or voidable if a party is found to have AIDS or venereal disease.
Many states prohibit marriage between parties more closely related than second cousins, though in some states first cousins may marry. In three states that prohibit marriages of first cousins, an exception is made for elderly parties: in Arizona and Indiana if parties are over 65 and one is sterile, or in Wisconsin if the woman is over 55 and one party is sterile. Only in Rhode Island do special exceptions exist for a particular religious group: Jews are permitted to marry according to religious law exclusive of state rules.
An issue which has lately caused a great deal of controversy is same-sex marriages. Until 1993, same-sex marriages were specifically banned in only about seven states. However, in that year the Supreme Court of Hawaii ruled that the state’s prohibition of same-sex marriages was a violation of the equal protection clause of the U.S. Constitution because it discriminated on the basis of sex. The court then sent the case back to the trial court to gather additional evidence regarding the state’s “compelling interest” in banning same-sex marriages. Immediately, fearful that they would be compelled under the constitutional principles of full faith and credit, to honor Hawaiian same-sex marriages, many states reacted by passing legislation specifically banning the practice. However, voters in Hawaii approved a constitutional amendment giving the legislature the authority to limit marriage to persons of the opposite sex. In 2000, the Vermont Supreme Court ruled that same-sex couples are entitled to all of the benefits of marriage.
In 2003, the Massachusetts Supreme Court declared that the state violates the constitutional rights of its citizens by prohibiting same-sex couples from getting married. The court also required the state to pass appropriate laws in response to its ruling or it would mandate official procedures and rules under which the state would allow same-sex couples to marry. The legislature has passed the laws and the first same-sex couples were married in May 2004. At the time of this writing the legislature is considering a state constitutional amendment that will declare that the citizens of Massachusetts do not recognize a constitutional right to same-sex marriage.
To date, several dozen states, including Hawaii, have passed laws prohibiting same-sex marriages. There are many states that currently have similar legislation pending. One state, Colorado, has passed a law making same-sex marriage illegal, only to have it vetoed by their governor. In general, the law in this area remains unsettled, and it is not clear whether other states will be forced to recognize a same-sex union performed in a state like Vermont.