What Is the Difference Between an Annulment and a Divorce?
If you are in a position where you are seeking to end a marriage, it is essential to understand the applicable laws and what is best for your situation.
A New Mexico divorce attorney from New Mexico Financial & Family Law can help. However, you may wish to learn about your options before seeking legal advice. In that case, keep reading to learn about the difference between annulment vs. divorce.
What Is the Difference Between Annulment and Divorce?
Divorce laws in New Mexico provide a clear path to dissolving a marriage. When it comes to legally ending a marriage, there are two options: annulment and divorce. The route you choose depends on the recognized state of your marriage. In either case, dissolving a marriage is typically because either spouse wishes to leave the union.
Is an annulment a divorce? The short answer is no.
An annulment is a process for ending a marriage that at least one of the spouses believes never should have occurred or never legally occurred. In other words, the circumstances of the marriage were such that the marriage itself should be declared invalid and not legally binding.
Examples of situations where an annulment may apply include the following:
- Either spouse was coerced or tricked into the marriage.
- Either spouse was unable to make a sound decision due to drug or alcohol impairment or mental disability.
- Either spouse was already married.
- Either spouse was not of legal age to marry.
- The marriage was incestuous.
One or more of those conditions must be proven in court for an annulment to be granted. Because of that requirement, annulments are significantly less common than divorces. Further, annulments are typically only granted within a few months of the marriage date.
If an annulment is granted, the marriage is immediately considered void, as if the couple was never married.
Divorce is separated into two categories: fault and no-fault. In a fault divorce, circumstances typically involve adultery, abandonment, or imprisonment. With no-fault divorces, neither spouse must prove fault for the divorce to be granted. The cited reason is typically “irreconcilable differences” or “incompatibility.” The latter category often lends itself to being more amicable, but every situation is different.
Divorcing couples may have disputes surrounding property, finances, child custody, and more in both instances. Those matters are typically settled through mediation and court proceedings concluding in court orders. Settlements involving child support and alimony vary but are often larger in cases of fault divorces.
Annulment & Divorce in New Mexico
Each state has its own procedures for filing an annulment or divorce. New Mexico is no exception. It’s beneficial to understand the process if you are planning to file. When you meet with a lawyer, they will review your unique circumstances and explain what applies to you and what does not.
Filing an Annulment in New Mexico
New Mexico annulment laws are stated in NM Stat. Ann. § 40-1-9. As discussed, there are limited grounds for filing an annulment. In New Mexico, those specific reasons include:
- One or both spouses were under the age of 16 at the time of the marriage.
- One or both spouses were under the age of 18 at the time of marriage and did not have parental consent.
- The spouses are too closely related.
- One or both spouses were legally married at the time of the marriage.
To obtain an annulment in New Mexico, you must file a petition in the district court in the county where you or your spouse lives. The petition has to include information about yourself, your spouse, your children, the marriage, and the grounds for the annulment. Once the petition is filed, the other spouse receives the petition.
A court date will be set, and the judge will determine if the annulment is a valid request based on the situations discussed above. Note that if you and your spouse have children, the judge has the right to make decisions regarding custody and child support. The same goes for shared property.
Filing for Divorce in New Mexico
Like many states, New Mexico defines divorce as a “dissolution of marriage.” The spouse that files for divorce is referred to as the petitioner, while the spouse receiving the petition is known as the respondent.
The process for filing for divorce begins with one of two forms: “Petition for the Dissolution of Marriage Without Children” or “Petition for Dissolution of Marriage With Children.” Note that the latter form only applies if you have children under the age of 19 who are still in school.
Once you complete the necessary forms, the paperwork is submitted to the judicial district court in the county in which you reside. Paying the filing fee or requesting a fee waiver is done at the time of filing. It’s important to note that New Mexico has a residency requirement when filing for divorce. At least one spouse must be a state resident for at least 180 days prior to filing.
After the paperwork is filed, it’s time to serve the petition. In New Mexico, there are three court-approved methods of serving divorce papers:
- Any person over the age of 18 can deliver a court-stamped copy of the petition to the respondent.
- A county sheriff may be hired to deliver the documents to where the respondent lives or works.
- A court-stamped copy of the petition may be sent via U.S. certified mail with restricted delivery and return receipt requested.
Once the papers have been served, the petitioner must file the proof of service with the court. The respondent spouse will complete a written response to the petition within 30 days, either contesting or agreeing with the petitioner.
Both spouses are responsible for submitting financial information no later than 45 days after filing the petition. Mandatory information includes individual and joint assets, debts, income, and expenses.
Contact a New Mexico Divorce Lawyer
With over two decades of experience assisting clients with matters of divorce, New Mexico Financial & Family Law is ready to help you. We can explain your legal rights and options if you are looking to form an amicable divorce, wish to appeal or modify a decree, or want to adjudicate your divorce in a trial.
Call us today at (505) 503-1637 or schedule a no-obligation consultation online.