What is the Difference Between a Massachusetts Annulment and Divorce

| Mar 28, 2018 | Divorce |


There are several very important differences between a Massachusetts annulment and divorce. First, when the court issues a judgment nullifying a marriage it means that the marriage never existed. When the court issues a judgment of divorce, the parties were still married but their status returns to that of a single person.

Second, annulment cases require litigation whereas divorce cases can be agreed upon. Parties cannot just agree to a judgment nullifying their marriage. A court has to make a determination that an annulment is warranted and permitted under the law.

Third, the parties’ rights and responsibilities are greatly impacted depending on whether the marriage is nullified or if a judgment of divorce is made. If the annulment is granted, the marriage never existed and therefore no “marital property” could be acquired by the parties. There may also be religious, immigration or other issues that arise as well.

Void marriages are those that are automatically void, for example: bigamous marriages or marriages between siblings. One exception to the polygamous marriage is where a person has a good faith belief that his or her first spouse was dead. 

Voidable marriages are those which are not automatically void, but where a person can petition the court to make a determination that the marriage never existed.

When a person is seeking a judgment that the marriage was void or voidable from the outset, this is called a nullity or annulment case. 


The grounds in which a person may petition the Massachusetts Probate and Family Court to request that the court void the marriage include the following:

  • Where a party lacks mental capacity to enter into a valid marital relationship;
  • Where the marriage is induced by fraud where the fraud goes to the essence of the marriage contract;
  • Where one or both spouses are underage; and
  • Where a spouse was impotent at the time of marriage.

A voidable marriage is valid until a court determines it is not valid, either by nullifying the marriage or by entering a declaratory judgment.


The court does not make it easy to annul a marriage. The reluctance of the Massachusetts Probate and Family Courts to nullify marriages is clearly evidenced in our state’s case law. For example, the pre-marital concealment of assets or debts and the existence of undisclosed health issues by a party have been held insufficient to void a marriage. Even in cases where actual fraud exists, the courts have been reluctant to allow the annulment unless the fraud was material and related to the “essence of the marital relationship”. 

The “burden of proof” to acquire a nullity judgment is by the “preponderance” standard, which means that it is more likely than not that the marriage is voidable. However, in these cases substantial evidence is required. Remember, void marriages do not have to be proven so there is no standard of proof required.

Notably, consummation of a marriage is not required to validate the marriage. If you didn’t have sexual relations with your spouse following marriage it is highly unlikely that a court will find this grounds for the annulment, however, if one party was impotent and unable to perform sexually that maybe grounds to void the marriage.

One spouse’s failure to disclose health issues is generally not grounds for an annulment. However, there are cases that have allowed a nullity on this basis. For example, in one case, a spouse did not disclose that they had a serious communicable (transferrable) disease and the court allowed the annulment. In cases where one spouse lies or misrepresents a particular health condition, such as epilepsy, the court has not allowed the annulment.

The law permits the family courts to grant a nullity judgment voiding a marriage in cases where one (or both) party is mentally incompetent. This means that when a person lacks the ability to understand the nature of the marital contract, he or she cannot be bound by that agreement. The focus of these cases turns on whether the person has a sufficient understanding of what is happening and is therefore unable to consent.The party seeking to nullify a marriage on this basis has a heavy burden of proof and must show substantial evidence of incompetence. Basically, one would have to prove that a party was insane at the time of marriage.

The courts may grant annulments when a person has the inability to copulate. This does not only apply to men. For an “impotency” argument, the condition affecting a party cannot be temporary.

The most common method family law litigants seek to nullify their marriage is based on fraud, which means that one person lied to induce another person to marry them. Case law clearly establishes that the fraud must directly relate to the “essence of marriage”.

Here are some types of cases where fraud might work to nullify a marriage:

  • Where a woman lies to a man about the fact that he is the father of her unborn child and they marry for that reason. Likewise, where a man lies about the fact that he impregnated another woman;
  • Where a party lied about their incurable venereal disease; 
  • Where a party enticed another to marry them so they could obtain immigration status; and
  • When a party intends not to cohabitate following marriage, including the intention not to have sexual relations and bear children.

What if a spouse lied about whether they were previously married and divorced? The courts have held that is not sufficient for an annulment.

Another way in which the court can nullify a marriage is when a person is forced to marry another person. This is called duress. This does not mean a party felt pressure to marry. It means that the person was actually threatened with harm if they did not marry.


    Marriages that are void never existed and therefore no action is needed to “void” since the marriage that is already void. However, in practice, it is a good idea to have the family court issue a judgment voiding the marriage so there is no question about validity.


    When children are born during a marriage and that marriage is subsequently nullified by a Massachusetts Probate and Family Court judge, the law wants to “legitimize” the child whenever possible. For most nullity actions, children born of the parents whose marriage was annulled will still be treated as if his or her parents divorced. In some cases, the child is simply treated as though he or she was born to parents out of wedlock. 


    If a marriage was void at the time of “union” between two people that married in another state or country under that jurisdiction’s laws, then it will also be void in Massachusetts. The theory behind this rule is called “Full Faith and Credit”, which means that Massachusetts must generally acknowledge the laws of other jurisdictions.

    The Law Offices of Renee Lazar is available to answer your questions about voidable marriages, annulment actions, and divorce cases. 

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