What is the difference between an annulment and divorce? I get this question from many of my clients who don't understand the nuance differences between the two. Annulment of marriage is a judicial declaration that the marital state is invalid from its intended inception. The procedure is now recognized and defined by statute, having been adopted by the Legislature in 1952. OCGA 19-4-1 et seq. the statutory annulment procedure is not the exclusive means by which a marriage status may be adjudged or declared invalid. Brennan v. Rushing 225 Ga. 85 (1969). In other words, if the marriage is invalid, it may be collaterally attacked and declared void in any appropriate court or proceeding where the validity of the marriage is properly in issue, either before or after the death of the parties to the marriage. The 12th lithic Company v. Maxwell 40 Ga. App. 483 (1929). Georgia law provides that the statutory procedure for annulment of marriage is available for any marriage which is now or hereafter declared void by law. Generally, marriage is declared void by law are marriages of persons unable to contract or unwilling to contract or fraudulently induced to contract. OCGA 19-4-1, 19-3-5 The one exception is an invalid marriage because of fraud, duress, or non-age where child is born or to be born as a result of the union of the parties. If this is a case the only available remedy is divorce. Wallace v. Wallace 221 Ga. 510 (1965). If the grounds for annulment are the same as grounds for divorce, Georgia law provides parties to invalid marriages have the option of filing a petition for annulment or petition for divorce. However, the remedy of annulment, which implies an invalid marriage, and that of divorce, implying a valid marriage, would seem to be mutually exclusive with different objectives. The key issue on whether or not there is a granting of an annulment or a divorce is whether there can be a judgment decree for divorce and alimony. An annulment will not support alimony but a divorce based on lack of understanding or duress will also prevent alimony.
The procedure for annulment is filing a petition by the party seeking the annulment or by the next friend in the case of minors or persons of unsound mind. Georgia law provides that all matters of residence, jurisdiction, service procedure, pleading and practice shall be the same as now or hereafter provided by law for obtaining a divorce, with the exception the decree of annulment may be ordered at any time in open court or in chambers, when personal service is had at least 30 days beforehand and no contest or answer is filed. OCGA 19-4-4. Contact a Dallas, GA divorce lawyer for help with your case.