Will I qualify for an annulment as opposed to a divorce and in what state?
My husband (then fiancee) moved to NJ in 09/08 and still resides there. I stayed here in WI until we sold our home. We got married in 10/09. We just closed on our home this week (short sale). I will be moving to VA in April. Will we qualify for an annulment instead of a divorce? There are no children. There are no assets. Where should we file? NJ, WI or VA? Will it be faster to get an annulment or a divorce? Which will be less expensive?
Where you file for a divorce depends on where you reside. Each state has a residentcy requirement that must be met in order to file for divorce.
Most likely you want to get a divorce, and because you've been married such a short time and don't have assets or children, you probably qualify for an uncontested divorce. An uncontested divorce is much simpler than an annulment. An annulment is an old-fashioned concept that was adopted by the New Jersey legislature many years ago as a result of lobbying by certain religious groups that publicly opposed divorce, but privately recognized that certain marriages were simply not meant to be.
To get a civil annulment (as opposed to a church annulment, for which you must consult your religious adviser), you must usually meet the specific requirements New Jersey's annulment statute which is N.J.S.A. 2A:34-1. Some typical grounds for an annulment are when one spouse alleges that the marriage was based on one spouse's fraudulent premarital statement. When it comes to dividing property, determining custody or child support, or other practical matters, there is little real difference between an annulment and a divorce.
Unless one of you has an extremely strong religious objection to divorce, that is the best route to take. You don't need to prove fraud or anything else -- because New Jersey allows no-fault divorce, you only need to say that you don't get along.
The New Jersey Family Court has jurisdiction over any annulment case. However, unlike in divorce cases, there is no residency requirement in order to file an annulment case, so long as either party is a bona fide resident of New Jersey at the time the action commenced.
In order to start the divorce process you must file a complaint in the circuit court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. For the ground of voluntary separation without cohabitation, the residency requirement is six months in Virginia. If there are no children from the marriage, you must be separated for a minimum of six months and have a written property settlement agreement before you may file for divorce. If there are children from the marriage, you must be separated a minimum of one year before you may file for divorce. You do not file a separation agreement with the Court. The law absolutely requires that you or your spouse has been a resident for the stated period of time immediately prior to and at the time that you file for a divorce. For example, you cannot have lived in Virginia for six months before moving to Nebraska for another six months and then come back to Virginia to file for a divorce. However, after you have filed, you can move anywhere in the world.
In Virginia, however, you could ask for two types of divorce: absolute and limited. When the court decrees (orders) an absolute divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. This is known as a "divorce a vinculo matrimonii" (meaning from the bonds of matrimony). When the court decrees a limited divorce, it means that the divorce is not permanent, does not permit remarriage, and does not terminate property claims (but the limited divorce may settle these claims); it serves only to legalize the separation and provide for support. This is known as a "divorce a mensa et thoro" (from bed and board). There is n0 such term as a legal separation in Virginia. You are not required to get a limited divorce before you can get an absolute divorce - there is a common misconception that you need a legal separation in order to get a divorce. This is not the case. Since divorce in Virginia is statutory, the law is located in The Virginia Annotated Code under Chapter 20.
Annulment establishes that your marital status never existed. The court will declare that you were never married. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these consideration a court will look to granting a divorce instead of an annulment.
See legal help in the State in which you decide to file.