questions & answers

Question: I want to get a divorce.  I married my wife several years ago.  After we were married, I found out that our marriage ceremony occurred before my wife had legally divorced her previous husband.  Is my  marriage to my wife legal?  Do I need a divorce or annulment?

Answer:

Arizona Superior Courts may annul a marriage that is determined to be null and void, such as when there is some legal obstacle or impediment causing the marriage to be void. (A.R.S. § 25-301) When someone is still married to someone else, that person is not able to marry another because being married to two people (called bigamy) is illegal. Technically, the wife was not legally able to marry when she did and the marriage is void. The courts may annul a void marriage if there are legal impediments (grounds) to do so. Some possible impediments are: 

• Undissolved prior marriage
• One of the parties is underage 
• There is a close blood relationship between the purported spouses 
• Intoxication 
• Duress 
• Fraud

This is not a complete list and a lawyer should be consulted if there is a question about whether a legal impediment exists and if annulment is the correct step to take. The process for an annulment is identical to a divorce and the courts will divide the property, and establish the rights and obligations of the parties (called purported spouses) with respect to any common or adopted children in accordance with Arizona laws regarding child support. (A.R.S. § 25-302(B)).

In order to file for an annulment in Arizona, one of the spouses must have made Arizona their home, or have been stationed in Arizona while a member of the Armed Forces for at least 90 days before filing the petition for annulment. In Arizona, property acquired during the valid marriage is called community property and each spouse is entitled to one half of the community property. Because the second marriage was not valid, the property that was acquired during the time of the void marriage is not considered community property and is not automatically split between the parties. During the annulment proceedings, each party will have to establish their contribution or investment in the property to prove their share of ownership when the property is divided. Forms for an annulment can be found at the Maricopa County Superior Court web site self service center online.