Annulment in Colorado

Annulment in Colorado

By Carl O. Graham

annulment, bigamy

What is an Annulment?

Many people assume that an annulment is simply an easy way to end a brief marriage. The reality is that a declaration of invalidity of marriage (the legal term for an "annulment" in Colorado) is a rare proceeding, and thanks to no-fault divorces, it is never easier than simply obtaining a dissolution of marriage. Hearing about celebrities annulling brief marriages in just a few days only fuels the misconception that any brief marriage can be ended by annulment.

From a practical perspective, there is no difference in outcome between an annulment and a dissolution in Colorado. The legal distinction is that in an annulment, the marriage effectively never happened, which may appeal to those who would rather avoid a divorce for religious reasons, or perhaps to reinstate benefits or payments lost when one party marries.

Legal Grounds For Annulment

It is harder to get an annulment than a divorce, because simply proving that the marriage is broken is not sufficient. Instead, a spouse seeking a declaration of invalidity of marriage must prove one of the following specific legal grounds outlined in C.R.S. 14-10-111(1):

  1. Mental Capacity. A spouse lacked the mental capacity to consent at the time of the marriage (e.g. mental incapacity, drugs, or alcohol),
  2. No Consummation. A spouse lacked the physical capacity to consummate the marriage (i.e. cannot have intercourse), and the other did not know this at the time of marriage,
  3. Age of Consent. A spouse was under the age to consent to marriage (18, or 16 with consent, for a marriage in Colorado) and did not have consent from parents, guardians, or a Colorado family law court to marry,
  4. Fraud. One spouse married in reliance on the other's fraudulent act or misrepresentation which went "to the essence of the marriage",
  5. Duress. One or both spouses married under duress,
  6. Jest. One or both spouses married as a jest or dare, or
  7. Void Marriage. The marriage was void due to: bigamy/polygamy, incest (ancestor & descendant, siblings, uncle/niece, or aunt/nephew), or any other reason under the laws of the place where the marriage was entered into.

Fraud Going “to the Essence of the Marriage”

There are very few reported cases on what constitutes sufficient grounds for an annulment, because the grounds are either black & white (e.g. whether a marriage was void), or the grounds were factual determinations for the trial court, and not overturned on appeal unless they were "clearly erroneous").  But there are a couple of cases that provide good examples of a fraud which goes to the “essence of the marriage.”

  • Claim of Illness. A wife who remarried her ex-husband based upon his representation that he had a terminal illness and his death was imminent was granted an annulment. The court of appeals affirmed, holding that the Wife’s assertion that she only married so her husband would not die alone did go to the essence of the marriage.   In re: Marriage of Farr, 228 P.3d 267 (Colo. App. 2010).
  • Marrying for Visa. The trial court found that the wife had married the husband not because she loved him, but solely to enable her to move to the U.S. and establish residency. There, the husband was lonely and vulnerable, and the wife convinced him to marry her, kept separate finances, and left the husband as soon as her green card came through.  In re: Marriage of Joel & Roohi, 2012 COA 128.
  • Marrying for Financial Gain. I’m reluctant to even mention this as a ground for annulment for a lot of reasons, starting with the fact that In re: Marriage of Blietz, 538 P.2d 114 (Colo. App. 1975) is marked “not for publication”, so cannot be cited as legal precedent. Moreover, the decision does not give us any facts to see how compelling the evidence was, so we can only speculate on how extreme the facts were. It is easy to claim “he only married me for my money”, but real tough to prove. Absent irrefutable proof of a financial motive, a brief marriage and some extreme facts, it’s questionable how viable this basis really is. The author has never seen a marriage annulled on this basis.

Deadlines for an Annulment

An annulment must be initiated within the following timeframes, and only by the persons indicated:

  • Lack of capacity to consent, fraud, duress, jest/dare: Within 6 months of learning of the grounds for annulment, and only by the aggrieved spouse (or representative for a spouse who lacked capacity to consent). C.R.S. 14-10-111(2)(a).
  • Lack of physical capacity to consummate marriage: Within 12 months of learning of it, by the aggrieved spouse. C.R.S. 14-10-111(2)(b)
  • Under age of consent: Within 24 months of marriage, by the underage spouse, or his/her parent or guardian. C.R.S., 14-10-111(2)(c)
  • Void marriage: Any time prior to one spouse's death or settlement of either spouse's estate, by either spouse, either spouse's children, an appropriate state official, or, in cases of bigamy/polygamy, the legal spouse. C.R.S. 14-10-111(3).

Annulment Procedure

The standard of proof in an annulment case is the same as other civil matters - preponderance of the evidence (i.e. greater than 50%). In re: Marriage of Farr, 228 P.3d 267 (Colo. App. 2010). The Court of Appeals rejected the husband’s assertion that “clear and convincing evidence” was required, holding that a 1961 Colorado decision to the contrary was overturned by statute.

The procedures for an annulment are identical to those for a divorce or legal separation, except that there is no requirement that one spouse be a resident for 91 days prior to commencing the annulment, and there is no statutory 91-day waiting period between commencement and the decree of invalidity of marriage.

Pursuant to C.R.S. 14-10-111(7), if the marriage was entered into in Colorado, an annulment can be initiated at any time within the deadline period referenced above. If the marriage was entered into outside of Colorado, at least one of the spouses must have been a Colorado resident for 30 days prior to commencing the annulment proceedings.

In annulment cases, the domestic relations court still needs to resolve issues pertaining to the division of marital property and debts, maintenance, and, if there are children, parenting rights and responsibilities and child support. So realistically, a contested annulment will take as long as a divorce or legal separation.

And even with an uncontested annulment, most people have less success than celebrities at finding a Colorado family law judge or magistrate who will grant an annulment as quickly as is popularly depicted.

Annulment & Children

Though Colorado will invalidate a marriage, retroactive to the date it was entered into, any children born of the marriage are still considered legitimate. C.R.S. 14-10-111(4). But while this may have mattered in the past, these days one would be hard-pressed to find a statute which distinguished between children born in or out of wedlock.

For purposes of parenting and child support, an annulment is no different than a dissolution or a legal separation - the same statutory considerations of best interests of the children apply, as do the same child support guidelines. It does not matter which spouse was at fault, or who was the aggrieved spouse in an annulment, unless the reason happens to also show the person is a bad parent.

Annulment & Financial Issues

Generally, a court in an annulment will still need to resolve the parties’ financial issues. However, in extreme cases, this may be somewhat limited.

“[T]he fraud of one party in inducing a marriage is dispositive. Property should not be divided in a manner that effectively treats the marriage as valid where doing so would reward the guilty party for his or her fraud.” In re: Marriage of Joel & Roohi, 2012 COA 128. In the Joel case, a wife who fraudulently induced the husband to marry her was denied both maintenance and the award of any marital property, other than any property acquired due to her own financial contribution. Similarly, “if a party committed fraud in inducing another to enter into a marriage, an award of maintenance to that party would not be equitable or ‘just’.”

What does this mean? Despite the fact that Colorado is a no-fault state, feel free to try to argue fault in an annulment, because if the other spouse engaged in fraudulent conduct resulting in the annulment, the court may well hold it against that spouse, and deny maintenance or a share of marital property.

Effect of Annulment on Prior Maintenance Obligation

Pursuant to C.R.S. 14-10-122(2), an obligation to pay maintenance ends when the recipient spouse remarries. But what happens if that remarriage ends by annulment? The Colorado Supreme Court held that the prior maintenance obligation may be reinstated! In re: Marriage of Cargill, 843 P.2d 1335 (Colo. 1993).

In Cargill, the spouses divorced after a 13-year marriage, and the husband had a 6-year maintenance obligation. The wife remarried 3 years later - ending first husband’s maintenance obligation. That remarriage then ended by annulment one year later, with the court finding that the wife’s new husband had committed fraud which went to the essence of the marriage.

The trial court from the first marriage then ordered the first husband’s maintenance obligation reinstated, but the Court of Appeals reversed that on the grounds that the word “remarriage” in C.R.S. 14-10-122(2) meant the act of remarrying, even if that remarriage ended by annulment.

A deeply-divided Colorado Supreme Court reversed, holding that “remarriage” did not mean simply going through the ceremony of marriage, but meant the status of being married. And because the remarriage was void, it effectively never happened, so maintenance could be reinstated.

Reinstatement of maintenance is not automatic, as the Court recognized that the first husband could have moved on, and made rational decisions based upon the expectation of no longer having a maintenance obligation. So instead, the judge is required to consider a variety of factors including the length of the second marriage, whether the annulment was proper or some form of collusion between the spouses, whether the spouse was receiving maintenance from the invalidated second marriage, the parties’ financial circumstances, etc.

Annulment & Military BAH

If a service member’s marriage is annulled because a marriage is simply voidable (mental capacity, fraud, jest/dare, etc), then the servicemember remains entitled to all BAH paid until the decree of declaration of invalidity of marriage.  Joint Travel Regulations, Chapter 10, section 100202(d)(7). In other words, the military will treat such an invalidated marriage the same as one which ended in divorce.

However, the situation is different for an annulment on the grounds that the marriage is void (bigamy, incest, etc). There, the entitlement to BAH ends upon the member discovering that his/her spouse was still married at the time of the marriage, or was a prohibited family member. So any BAH paid between that time and the declaration of invalidity of marriage must be repaid. DOD Financial Management Regulation, Vol. 7A, Chapter 26, Para. 260403(f)(1).

Additionally, BAH payments paid on the basis of a void marriage may be subject to repayment, unless the court finds that the servicemember entered the marriage in good faith, or the military investigates and determines that the member entered it in good faith, and therefore “validates” the prior BAH payments.

Do You Need an Annulment Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

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Divorce