In order for a marriage to be annulled, the marriage must be void or voidable. A void marriage never had legal effect. A voidable marriage exists but can be undone with decree of annulment. The legal effect of a decree of annulment is that the marriage is void.
While a divorce in Nevada is based on incompatibility, or separation for over one year or insanity existing for two years prior to the commencement of the action, the legal grounds for annulment are narrower and are based on the idea that a marriage is a contract. Like a contract, a marriage can be void depending on the facts. If the facts of the case do not fit within the annulment grounds, the parties should seek divorce and not annulment.
A marriage is void if
- The parties are related within the legal degree of consanguinity (the parties cannot be related any closer then second cousins or half blood), or
- Either of the parties already has a living spouse, if the prior marriage was solemnized within in Nevada.
The law treats a void marriage as if it never happened. A void marriage does not become valid even if the reason for the invalidity is eliminated. For example, if one of the parties is still married to a prior spouse, the marriage is void from the beginning so even when the prior spouse divorces or dies, it does not make the marriage valid. If the marriage is void a decree of annulment is not needed. However, in order to keep the record clean, especially in immigration cases, a decree of annulment can be helpful.
A voidable marriage requires legal proceedings in order to declare the marriage annulled. A marriage is voidable under any of the following circumstances:
- There was lack of consent of parent or guardian: If a party to the marriage is a minor and the consent of the minor’s parent of guardian was not obtained, the marriage is voidable. The same rule applies to other contracts entered into by minors.
- Lack of understanding of the process: If a party is legally incapable of consenting to the marriage, the marriage is voidable. For example, if a party was legally insane, that person was legally unable to enter into a contract and therefore the marriage is voidable.
- The consent to the marriage was obtained by fraud. The nature of the fraud is important here. For example, when one party fails to disclose to the other that he or she cannot have children, this is the kind of fraud that will constitute grounds for annulment. However, if one party lies about how much money he or she has, that fraud might not be sufficient for annulment.
- Any other cause to void a contract.
If the parties married in Nevada, the action for annulment can be filed in Nevada even if neither party resides in Nevada. If the parties did not marry in Nevada, one of the parties has to be a resident of Nevada for at least six weeks with intent to remain in Nevada indefinitely in order to be able to file for annulment in Nevada.