Annulment in West Virginia

Last Updated On: 2/2/2018 2:17:25 PM

What is an Annulment? 

An annulment is a declaration that a marriage was never legal, and never existed.

The law prohibits certain types of marriages.  For example, you can’t marry someone who’s already married to another person. You can’t marry your brother or sister. You can’t marry someone who hasn’t reached legal age.

But sometimes, one side or the other doesn’t know all the facts.  A marriage may take place, even though it wasn’t legal.  When the truth “comes out,” the person who was harmed may want to end the marriage. 

The concept of annulment is that the marriage never “legally existed” because the marriage was prohibited by law.  An annulment case creates a legal “fiction,” that the marriage never actually existed.  

In contrast, a divorce case recognizes that the marriage was lawful and proper while it existed, but is being ended now. 

In some religious traditions the difference between “never existed” and “existed but ended” can be extremely important.  But in some of those religions an annulment granted by the State (but not by the church) may not be enough to solve the problem. If this is your concern, you should talk carefully with your church leader or spiritual advisor to understand how to address your concerns.

Is there any difference between what an Annulment Court can do and what a Divorce Court can do?

Only one difference - Spousal Support (alimony) cannot be awarded in an Annulment case.  

Otherwise, in the eyes of the law in the modern world there is no difference between relief in an Annulment case and in a Divorce case. 

In both types of case the court can award child custody, child support, medical and hospital support, equitable division of property and bills, return of separate property, and so on.  

The only difference is that Spousal Support cannot be awarded in an annulment case. See WV Code 48-3-106.

Does One Party Have To Live in West Virginia For An Annulment Case To Be Filed In West Virginia?

Generally, yes, at least one of the parties has to live in WV. It doesn’t matter whether it’s the party filing for annulment, or the party named in the annulment. An annulment cannot be handled by a West Virginia court unless one of the parties to the marriage in fact lives in WV at the time of filing. WV Code 48-3-101(a).  (There is one exception to this rule, which we’ll describe in a moment.)

There is no required time period for how long the person must live in West Virginia. The requirement is that one party must be actually residing in West Virginia at the time the case is filed in West Virginia.  Keep in mind that “residing” means “living” in West Virginia, not just visiting while you really live somewhere else.  But otherwise there is no required minimum time to live in WV before filing.

To summarize, if you don’t live in WV then the person you’re naming in the case has to live in West Virginia.  Otherwise, no annulment in West Virginia.  But there is one exception.

What’s the Exception to the “At Least One Party Must Live in WV” Rule?

If neither party lives in WV at the time of filing, an annulment can be filed in WV if two things are true:

     (1) The original marriage was performed in WV; and 

     (2) The parties “have not established a matrimonial domicile elsewhere.”  

See WV Code 48-3-101(b).

Let’s look at some examples. 

  • Suppose you got married in WV.  Then you broke up and went your separate ways.  You never lived together again, either in WV or any where else.  Neither one of you lives in WV now.  The exception DOES apply. The annulment can be filed in WV because this is where the marriage was performed.
  • Suppose you got married in WV, and lived in WV for a while.  Then the two of you moved to another state and lived together there.  Maybe it was only a short time, maybe even just a few days, in the other state.  The exception DOES NOT apply.  You “established a matrimonial domicile” in another state.  An annulment cannot be filed in WV unless one of you lives in West Virginia.
  • Suppose you got married in WV, never lived in WV, but lived together in another state (no matter how long or short). The exception DOES NOT apply. You “established a matrimonial domicile” in another state.  No annulment can be filed in WV unless one of you moves back to West Virginia.
  • Suppose you got married in WV, but had a pretty rocky relationship.  You lived together several times, and you lived separate several times.  If any of those “lived together” times were in another state, the exception DOES NOT apply.

Where in West Virginia Do I File An Annulment? 

There are several options for where the case must be filed. These depend on where the parties are living at the time the case is filed. See WV Code 48-3-102.

  • If the party against whom the annulment case is filed DOES LIVE in WV, the annulment must be filed in one of these two counties:  
    • In the county where the parties to the marriage last lived together; OR
    • In the county where the “respondent” (the party against whom the case is filed) actually lives now.  
  • If the party against whom the annulment case is filed DOES NOT LIVE in WV, the annulment can be filed in either of these two counties:
    • In the county where the parties to the marriage last lived together; OR
    • In the county where the party filing the case actually lives.  
  • If neither party lives in West Virginia: As we discussed above, there is one narrow situation where an annulment can be filed in WV even though neither party lives in WV. [Refresher: The marriage was performed in WV, AND the parties never lived together in any other state.] When the exception applies, the Annulment case must be filed in the county where the marriage was performed.

How Do I File An Annulment Case? 

Exactly the same way that you file a divorce case.  You can use exactly the same form as for a divorce, with two changes:

  • First, write in the word “annulment” wherever the word “divorce” is found.
  • Second, you will have to write in the grounds for annulment that apply in your case.  

The divorce forms available from the Circuit Clerk’s Office do not contain any grounds for an annulment.  You’ll need to cross out all the divorce grounds, and add a separate page with the annulment grounds identified.

Otherwise, the annulment case will be handled just like a divorce case.  The same rules for “service of process” will apply.  The Family Court will hear the case.  The same procedures will apply.  Be sure you understand all those procedures and requirements before filing an annulment case.

What Are The Grounds for An Annulment?

WV Code 48-3-103 lists a number of reasons for which an Annulment can be given. Here’s what the Code says.

Already Married. One party was married to another person at the time of the marriage ceremony. If the previous marriage was ended by divorce, annulment or death, then everything’s fine. If the previous marriage wasn’t legally ended, then the “next marriage” isn’t valid and can be annulled. WV Code 48-3-103(1).

Family Relationship. The law prohibits marriage between certain family members. A man cannot marry “his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother’s daughter, sister’s daughter, first cousin or double cousin.” There’s an identical list for women. WV Code 48-3-103(2). But relationships by adoption don’t count. WV Code 48-2-302.

Mentally Incompetent. If one party to a marriage was determined by a court to be legally incapacitated, then the marriage can be annulled. WV Code 48-3-103(3)(A).  Caution: This does NOT mean any person with a mental illness or a behavioral health condition. Only people who have been determined by a court to be “legally incapacitated” or “in need of protection” are prohibited from marrying.

Sexually Transmitted Disease.” A person with a sexually transmitted disease (STD) that is active and untreated is prohibited from marrying. WV Code 48-3-103(3)(B). This can be a ground for Annulment. But there are limitations on this ground:

  • Subsequent Cure. If the party who had the STD at the time of marriage is later treated and cured, then the person who had the STD cannot file for annulment. (The other person might.) WV Code 48-3-105(c).
  • Subsequent Cure AND Marriage Subsequently “Confirmed.” The party who did not have the STD cannot file an annulment case IF (1) the STD has been cured AND (2) after the STD is cured the partner “has by acts or conduct confirmed the marriage.” WV Code 48-3-105(c). The phrase “confirmed the marriage” typically includes having sex together, or continuing to hold themselves out to the world as spouses.

Impotence.If one party was “incapable, because of natural or incurable impotency of the body, of entering in the marriage state.” WV Code 48-3-103(3)(C). Limitation. Neither party who knew of the impotence at the time of the marriage can file for an annulment. WV Code 48-3-105(a). Caution: Many movies and television shows seem to think that a marriage can be annulled if the parties never had sex together. (If they never “consummated the marriage” was the phrase.) This is not the law of West Virginia. If one party is “incapable” of having sex that may be a ground for annulment. But if a party is capable but chooses not to engage in sex, that is NOT a ground for annulment.

Under the Age of Consent. A marriage performed when one party is under the legal age of consent can be annulled. WV Code 48-3-103(3)(D). What is the legal age of consent? There are several categories.  

  • The full age of consent is 18. WV Code 48-2-301(a).
  • People under 18 but over age 16 may marry if their parents provide written consent to the county clerk issuing the marriage license. WV Code 48-2-301(b).
  • People under age 16 may not marry unless their parents provide written consent AND the circuit court of the county finds a marriage is in the “best interest” of the person under age 16.  

There are limitations on who can file for annulment when one party was under age.

  • One Party Was of Legal Age. Suppose one party was legal age and one party was not. The party who was old enough to get married cannot later file for an annulment. WV Code 48-3-105(d).  
  • After Reaching Legal Age. The party who was too young cannot file for an annulment IF (1) that person later reached legal age AND (2) after reaching legal age that person “by acts or conduct confirmed the marriage.” WV Code 48-3-105(d). The phrase “confirmed the marriage” typically includes having sex together, or continuing to hold themselves out to the world as husband and wife.

Convicted of a Crime Punishable by Imprisonment in Excess of One Year Under the Law. The law says that a person who has previously been convicted of a crime punishable by imprisonment in excess of one year under West Virginia law, another state's law, or federal law cannot marry unless the other party knows about the conviction.  WV Code 48-3-103(3)(E).  If both parties are aware of the conviction and wish to marry, it's legal.  If one party doesn't know about the previous conviction, it isn't legal.

Found Out Later And Continued Cohabiting. Suppose the party who didn’t know about the conviction at the time of marriage found out about it later. If that person continued to “cohabit with” the spouse after learning of the conviction then no annulment can be filed. WV Code 48-3-105(f).

Pregnant By Another Person. If the husband was not aware at the time of marriage that the wife was pregnant by another man, this can be a ground for annulment. WV Code 48-3-103(4). But if the husband knew at the time, or if he continues to cohabit with the wife after learning about the pregnancy at time of marriage, he cannot file for annulment. WV Code 48-3-105(g).

Lack of consent, fraud, force or coercion. Suppose a marriage takes place due to fraud, force or coercion. In that situation, the victim of the fraud or coercion has not truly “consented” to the marriage by their own voluntary, knowing, informed decision. That kind of marriage can be annulled. See WV Code 48-3-105(b) and 48-3-105(e). There are limitations, however:

  • The party who is guilty of the fraud, force or coercion cannot seek an annulment.
  • The party who was the victim of fraud, force or coercion cannot seek an annulment IF after learning the truth he or she “by acts or conduct confirmed such marriage.” ” WV Code 48-3-105(b). The phrase “confirmed the marriage” typically includes having sex together, or continuing to hold themselves out to the world as husband and wife.
  • The person who had the ability to consent to the marriage cannot seek an annulment from the person who could not consent to the marriage. WV Code 48-3-105(e).

Conclusion

Annulment cases are extremely rare these days.  

Many decades and centuries ago there were very limited grounds for obtaining a divorce, so there weren’t many of them.  Annulments were more important in that age as an alternate method of ending a bad marriage.  

In the modern world Divorces are not as limited.  There are agreed No Fault grounds, or the ground that the parties have lived separate for a year.  There are the traditional grounds based on fault of one party or the other.  With divorce as an option, very few people feel that the more difficult evidence required for an Annulment is worth the time and expense.

Moreover, there’s nothing a court can do in an Annulment case that can’t be done in a divorce case.  In fact, it’s the opposite.  Spousal Support is available in divorce cases, but not in annulments.  

In the end that means that courts almost never handle Annulment cases any more.  But it can be done.  If you have special reasons for pursuing an Annulment instead of a divorce, you can consider that option.

This is general legal information. For guidance about your situation, talk to a lawyer.