You want to end your marriage, and you are wondering: Can I get an annulment instead of a divorce? This post will discuss how to get an annulment in Oklahoma.
First, here is the difference between a divorce and an annulment:
· A divorce is the legal termination of a valid marriage.
· An annulment is a decision, where a judge rules that a marriage is invalid, because of a defect existing at the inception of the marriage.
There are only a limited number of grounds for which you can obtain an annulment in Oklahoma.
To obtain an annulment, you must prove that your marriage is either void or voidable.
· A void marriage is a purported marriage, that, because of its defect, never existed. If a marriage is void, no judicial proceeding is necessary for the termination of the marriage. A void marriage can be attacked by any person, in any court proceeding in which the issue is relevant. A void marriage can be attacked after the death of one or both of the parties.
· A voidable marriage is a purported marriage, that, is valid until a court annuls the marriage. A voidable marriage cannot be attacked after the death of one of the parties. Only certain persons may attack a voidable marriage.
Void Marriages
In Oklahoma, there are only two grounds for finding a marriage to be void: bigamy and incest.
· Bigamy. A marriage is bigamous, if, one party has a living spouse at the time of the marriage. A bigamous marriage is void. However, if a marriage is bigamous at the time of the marriage, the marriage can ripen into a valid marriage, if the already-married spouse obtains a divorce, or if the first spouse of the married spouse dies.
· Incest.
The following persons may not marry each other:
· ancestors and descendants of any degree,
· a stepfather and a stepdaughter,
· a stepmother and stepson,
· uncles and nieces,
· aunts and nephews,
· brothers and sisters,
· half-brothers and half-sisters.
Any marriage between such persons is “incestuous, illegal, and void.” Okla. Stat. tit. 43 § 2.
Voidable Marriages
The grounds for finding that a marriage is voidable are:
1. One of the parties is underage;
2. One of the parties is mentally incapacitated;
3. One of the parties was divorced in Oklahoma, and remarried someone (other than their ex-spouse) in Oklahoma less than six months after the divorce was final;
4. Fraud, error, duress, or lack of consent.
These grounds will be discussed in more detail, below.
· Underage Marriage.
o In Oklahoma, a person must be at least eighteen years old to marry without consent of a parent or guardian.
o If a person is over sixteen but under eighteen, the person needs the consent of a parent or guardian to marry.
o If a child is over sixteen, but under eighteen, and three reputable persons sign an affidavit, saying that both parents of the child are deceased, mentally incompetent, or their whereabouts are unknown, and the child has no guardian, then the child may marry with the permission of a judge.
o If a child is in the custody of the Department of Human Services (DHS) or the Department of Juvenile Justice, a parent or guardian may not consent to the child’s marriage.
o No person under sixteen may marry, without permission from a judge. A judge an only give permission for a child under sixteen to marry under the following circumstances:
1. In settlement of a suit for seduction or paternity, or
2. The unmarried female is pregnant, or has a child out of wedlock, and at least one parent or guardian of each minor has an opportunity to present evidence before the court, is the parent or guardian objects to the marriage license.
o If the parties live together as a married couple after the underaged party becomes 18, then the marriage becomes valid and may not be annulled.
o If a person who is underage marries, the underaged party, or that party’s parent or guardian, may petition for an annulment. But, if a parent, or guardian of a married minor, does not promptly seek an annulment as soon as the parent or guardian learns of the marriage, then the parent or guardian may not petition for annulment.
· Mental Incapacity. If one party is mentally incapacitated at the time of the marriage, then the mentally incapacitated party, or that party’s parent or guardian, may file for an annulment. However, if the parties continue to live together as a married couple after the incapacitated party regains mental capacity, then the marriage becomes valid and may not be annulled.
· Remarriage in Oklahoma Less Than Six Months after a Divorce. If parties were divorced in Oklahoma, neither spouse may remarry anyone else in Oklahoma less than six months after the divorce is finalized, or less than 30 days from the issuance of a final judgment after an appeal of the divorce issue. If a divorce spouse marries another person in Oklahoma, before the waiting period is over, the marriage is voidable any may be annulled. However, if the parties continue to live together as husband and wife after the waiting period has elapsed, then the marriage become valid and may not be annulled. Also, if a spouse divorced in Oklahoma remarries someone outside of Oklahoma before the waiting period has elapsed, the marriage may not be annulled.
o Note that, if a couple is divorces in Oklahoma, the ex-spouses may remarry each other in Oklahoma before the waiting period is over. However, neither spouse may marry anyone else in Oklahoma during this time.
· Fraud, Error, Duress, or Lack of Consent. If a marriage was obtained by fraud, error, duress, or lack of consent, the victim of the fraud may petition for an annulment.
Out-of-state Marriage by Oklahoma Residents
If two Oklahoma residents marry outside of Oklahoma, and the marriage would be illegal in Oklahoma, then, when the spouses return to Oklahoma, the marriage is invalid in Oklahoma, and may be annulled in Oklahoma. The marriage is invalid in Oklahoma even if the marriage was legal in the state where the marriage took place.
There are two exceptions to this rule:
1. A marriage, where one party has been divorced in Oklahoma, and the waiting period for remarriage has not elapsed, is valid in Oklahoma, if the marriage was performed in another state. This is discussed in more detail, above.
2. A marriage between first cousins, which takes place outside of Oklahoma, is valid in Oklahoma if the marriage is valid in the state where it is performed.
How to File for an Annulment
File a petition in the county where you have been a resident for thirty days prior to filing the petition. You may also file your petition in the county where the opposing party is a resident. To obtain an annulment in Oklahoma, either you, or the opposing party, must have been a resident of the State of Oklahoma for six months prior to filing the petition.
Relief Available in an Annulment Proceeding:
1. A declaration that the marriage is invalid;
2. Custody and visitation order for minor children;
3. Child support and medical care order for minor children;
4. Division of the property of the spouses;
5. Attorney’s fees and court costs;
6. Temporary alimony (that is, alimony paid while the annulment proceeding is going on) may be obtained in an action to annul a voidable marriage, but may not be obtained in an action to annul a void marriage. You cannot obtain permanent alimony (that is, alimony paid after the annulment is final) in any annulment case.
7. You may remarry immediately after the annulment is granted (this is different from a divorce case, where you have to wait six months before you can remarry anyone else)
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