Basics of Annulment

An annulment is when a party seeks to have the marriage to be determined as invalid.  In a sense, an annulment seeks to “undo” the marriage, as if the marriage never happened.  First, for an annulment to be considered by the Court, the marriage must have been a valid marriage.  Next, there have to be grounds (a reason for the Court to grant the annulment) that were present at the time of the marriage.  Grounds for annulment include:  1) lack of consent or capacity, 2) lack of intent to be bound by the marriage, 3) existence of bigamy or polygamy, 4) if the marriage is incestuous, 5) under the statutory age of consent, and 6) incurable physical impotence. 

 

Lack of consent or capacity

Each person must knowingly and voluntarily enter into the marriage.  The marriage may be annulled if one or both of the parties did not agree to enter into the marriage, were forced or coerced into the marriage, did not have the mental capacity necessary to understand they were entering into a marriage (although there are some additional issues when drugs and/or alcohol is involved), or the marriage was a fraud.

 

Lack of intent to be bound by the marriage

Each person must intend to accept the rights and responsibilities that come along with marriage.  If two parties marry solely so one can attain citizenship, this marriage may be annulled.

 

Existence of bigamy or polygamy

If either party has another living spouse, the marriage may be annulled.

 

Incestuous marriage

An individual cannot marry a direct blood ascendant or descendant such as a parent, sibling, or aunt/uncle, or cousin.  If your marriage would make your family tree a wreath, you probably can’t do it!

 

Age of consent

In Florida, the legal age of consent is 18.  If an individual is under 18, there are some exceptions.  If a party is married while underage and does not meet an exception, the married may be annulled.

 

Incurable physical impotence

If the other party is not aware of the incurable physical impotence before the marriage the marriage may be annulled.  If the individual is unaware of the incurable physical impotence until after the marriage; but consents or agrees to the situation, this is not grounds for annulment.

 

Defenses to Annulment

The defenses most frequently raised are that the charging party consented after the marriage, or ratified the marriage by their conduct or behavior. 

 

Alimony

Generally permanent alimony is not awarded; however temporary alimony while annulment proceedings are pending is possible.

 

Property Division

The Courts will try to put the individuals in the same position they were in prior to the marriage.

 

Note:  this article is a very general discussion of the grounds for an annulment.  Please contact my office for an appointment to discuss how the law may apply to your unique situation.

How military divorces are different from civilian divorces

Military divorce proceedings present many challenges that are generally not present in a civilian divorce.  These aspects include:

 

• locating the military member,
• service of process upon the military member,
• service of process abroad,
• the Servicemembers Civil Relief Act which may stay the proceedings against a military member;
• which jurisdiction to file the proceeding;
• determining the military member’s legal domicile,
• creating appropriate custody and visitation schedules (now included as part of a comprehensive parenting plan and termed time-sharing and parental responsibility),
• calculating child and family support,
• obtaining child support without a Court order,
• garnishment of wages through the military pay system; and
• pension and property division including the Uniform Services Former Spouses’ Protection Act, calculating the military member’s vested time in the military and the spouse’s vested time for benefits, reenlistment bonuses, accrued leave time, military medical benefits, military commissary and exchange shopping privileges, and military ID cards. 
• A new benefit, worth up to $85,000, will become an issue on the near horizon.  Military members can transfer some of the G.I. bill benefit to their spouse and/or children.  What if a spouse takes advantage of this benefit, receives an education at the service member’s expense, then files for divorce? 

To discover how these aspects of military divorce affect your unique situation, please contact my office at (904) 321-0987.

Challenging a Will

A will is challenged when a person, known as the “contestant,” comes forward, and tries to show that the will is invalid and should not be probated.  A will challenge must occur within a certain time period or is forever waived.  Either the entire will or only the affected portions may be determined invalid.  Challenges to the validity of the will often include one or a combination of the following:  improper execution, valid revocation, lack of testamentary capacity, execution of the will while the testator was under the undue influence of another individual, mistake, or fraud.

 

Improper Execution

In Florida, a will must be signed by the testator, at the end of the document, with no additional changes to the same document after the document has been executed.  Further, the will must be notarized and signed in the presence of two disinterested witnesses.  The notary cannot also serve as a witness.

 

Valid Revocation

The will was validly revoked by operation of law, subsequent instrument (such as a new will or a codicil), or physical act.  For more about valid revocation, please contact my office, as this is a very particular aspect of Florida law.

 

Lack of Testamentary Capacity

Lack of testamentary capacity claim charges that testator 1) was under the age of eighteen (18) at the time the will was executed, and was not emancipated; or 2) did not have the mental capacity at the time the will was executed to understand the extent of their property or the nature of the disposition being made.

 

Undue Influence

To succeed in an undue influence claim, the contestant must prove that 1) influence was exerted over the testator, 2) the influence overwhelmed the testator’s free will, and 3) that the will would not have existed in its current form if the undue influence had not existed.  Begging, pleading, nagging, joking, etc., are generally not sufficient to overcome the testator’s free will.

 

Mistake

Mistake usually occurs when the testator did not know s/he was signing a will, but thought they were signing a different document instead (i.e. a power of attorney).

 

Fraud

Either a misrepresentation was made as to the nature or contents of the instrument, or the testator was induced into making a will or gift by misrepresentations of fact that influence her motivation.

 

For more information about wills, please contact my office at (904) 321-0987.