The South is known for having a higher marriage rate than other regions of the United States, but unfortunately, that means it also has a higher divorce rate. A study conducted by the American Community Survey found that couples in the southern United States have the highest divorce rates. The study found there are 10.2 divorces per one thousand men and 11.1 divorces per one thousand women in the Southern United States, including South Carolina. However, before you decide to go forward with a divorce, you may consider whether your marriage could be annulled. South Carolina law provides that in some circumstances, you may be able to seek an annulment rather than a divorce.
How Is an Annulment Different than Divorce?
Unlike a divorce, which terminates your marriage, an annulment declares your marriage null and void from its inception. This is akin to saying your marriage never happened in the first place. A divorce may give you various benefits that an annulment does not. However, some issues like custody and property division are usually handled in a similar way in both an annulment and a divorce.
If the court grants your annulment, any children born to your marriage are still considered legitimate if one parent entered into the marriage in “good faith” (did not know the marriage should be invalid).
Requirements and Grounds for an Annulment
South Carolina law requires a party to prove one of the following grounds in order to get an annulment:
- One or both spouses was underage at the time of marriage. South Carolina prohibits marriage if one or both spouses is under sixteen years old.
- One party was under duress at the time of marriage. Either spouse may seek an annulment if the marriage was entered into under the threat of bodily harm. The threat must also be immediate. In the past, South Carolina courts have denied an annulment when a threatened person has the ability to flee prior to the wedding but the person chooses to go through the ceremony.
- The marriage occurred under a fraudulent misrepresentation essential to the relationship. A spouse may seek an annulment if their spouse lied about something essential to the marriage. For example, if a spouse says he can have children when he knows he is sterile or if a spouse hides his insanity or mental condition. However, fraudulent misrepresentations about someone’s social standing or fortune will not be sufficient. When determining whether to grant an annulment based on fraud, the court will also consider how serious the marriage was, whether the spouses share a bed, or whether the spouses consummated the marriage.
- Your spouse was married to another person at the time of the marriage. It is not legal in South Carolina to be married to more than one person at a time (bigamy). Therefore, if your spouse was married to another person when you married each other, the marriage may be annulled. However, if a person could still have a valid marriage if the former spouse has been missing for five or more years without any signs they were alive.
- One or both spouses was mentally incapacitated at the time of marriage. If you or your spouse were suffering from a legally recognized form of mental incapacitation such that there was no valid consent, the marriage is void.
- The parties failed to consummate the marriage. In some cases, if you or your spouse is unable to consummate the marriage, you may be eligible for an annulment. However, if you and your spouse have lived together, the court may find that you have ratified the marriage.
- The parties are too closely related by blood or marriage. South Carolina prohibits marriage between two people who are more closely related than first cousins.
In order to prove one of these legal grounds, parties should be prepared to present testimony and evidence relating to this ground at the annulment hearing. Further, South Carolina Code § 20-1-530 provides that a party seeking to annul a marriage on any grounds besides legal incompetence must prove (1) lack of legal consent or that the marriage was not a valid contract and (2) that there was no cohabitation between the parties.
The South Carolina Annulment Process
To start the annulment process, you will need to file a Complaint for Annulment in the circuit family court for the county where your spouse lives. As the filing party, you will be designated as the “plaintiff” and your spouse will be designated as the “defendant.” To fulfill the South Carolina residency requirement, you must have lived in South Carolina for at least one year. There are several requirements for a Complaint for Annulment. Specifically, you must list the following:
- The date of your marriage and the city, county, and state where you were married;
- The counties where you live and where your spouse lives;
- The names and birthdates of any children born to you and your spouse during your marriage;
- The legal ground that makes your marriage eligible for annulment (see above); and
- Any proposed asset or liability division or custody issues you would like decided by the court.
Once you file your complaint with the proper family court, you will need to serve a copy of the complaint on your spouse. Your spouse then has 30 days to seek representation before the court will allow you to set a hearing on your complaint. The court will then hold a hearing before a judge where you will have to prove the legal grounds for your annulment. At the hearing, you should be prepared to present any evidence that supports this legal ground.
Is There a Time Limit For Filing for Annulment?
No. South Carolina law does not set a time limit for filing for an annulment.
Contact an Experienced Greenville, South Carolina Annulment Lawyer Today!
Determining whether you can or should get your marriage annulled rather than proceeding with a divorce can be a difficult decision. The experienced family law attorneys in Greenville, SC at Elliott Frazier Law Firm, LLC can help walk you through the process and talk you through the pros and cons associated with annulment. Contact us today for a case review to evaluate your case.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.