Benefits of a Nevada Annulment Explained
Many people have a basic understanding of how Nevada family law operates. However, few understand the nature of a Nevada annulment, nor do they understand the benefits of a Nevada annulment. The most basic difference between a divorce and an annulment under Nevada law is that an annulment recognizes that a supposed marriage was never valid at all. This article is intended to help clarify Nevada annulment law, Nevada annulment legal procedure, and explain the benefits of a Nevada annulment, whether or not you reside in Nevada. We hope couples seeking an annulment can become educated about annulments in Nevada before filing in court.
The Laws of Annulment in Nevada
The Nevada statutes relating to annulment can be found in Title 11 of the Nevada Revised Statutes (NRS) under Chapter 25 in sections 125.290 through 125.440. Under NRS § 125.300, a married couple or spouse may only seek an annulment for cause. A no-fault ground for annulment does not exist, and the spouse seeking an annulment must prove that cause for an annulment exists by providing evidence in Court. That said, one of the benefits of filing an annulment in Nevada versus in another state is the broadness of the law when it comes to annulling a marriage in Nevada.
Only the following circumstances are cause for seeking an annulment under Nevada law:
- Child marriages (marriage of a person under the age of 18) where the legally-required parental or judicial consent was not obtained before the marriage. Keep in mind that a spouse only has up to one year after he or she turns 18 to file an action, even if the parties have not cohabited. NRS § 125.320.
- Marriage to a legally insane individual or a marriage to a person who lacked the mental capacity to consent to a marriage. NRS § 125.330.
- Instances where consent to a marriage was obtained by fraud. NRS § 125.340.
- Bigamous and incestuous relationships. Note that while it is good practice to file for annulment in cases of bigamy and incest, it is not technically legally required. For additional information, please see the section entitled “Situations Where an Annulment is Not Required.” NRS § 125.290.
- Other equitable grounds may also justify an annulment such as illegality, unconscionability, or violations of public policy. NRS § 125.350.
Because the requirements for a Nevada annulment are very specific, it is fortunate that a spouse can file for both a divorce and an annulment at the same time. A spouse can file jointly for divorce and annulment under NRS § 125.380. If the filing spouse fails to secure an annulment, then it may still be possible to get a divorce from the court, or vice versa, without having to file multiple lawsuits.
Annulment Residency and Jurisdictional Requirements in Nevada
The residency requirements for annulments under Nevada law are very unique and not like any other area of law. If the marriage was either contracted or performed within the State of Nevada, no residency requirement exists. See NRS § 125.360. More complex requirements exist for marriages not contracted or performed within the State of Nevada
To annul an out-of-state marriage within Nevada, the couple or spouse seeking the annulment must first determine the proper Nevada jurisdiction for seeking an annulment. All annulment lawsuits must begin in a district court. The State of Nevada has eleven district courts, which each service one or more counties. Under NRS § 125.370, Nevada district courts will retain jurisdiction over an annulment lawsuit for an out-of-state marriage in one of three ways:
- Any district court in Nevada will exercise jurisdiction over an annulment lawsuit if the filing spouse has resided in the State of Nevada for at least six weeks;
- The district court of the county in which the non-filing spouse resides may exercise jurisdiction over an annulment filing if the non-filing spouse has resided in Nevada for at least six weeks; or
- The district court of the county in which the filing spouse resides may exercise jurisdiction over an annulment filing only if it is the same jurisdiction in which the parties last cohabitated and if the non-filing spouse has resided in Nevada for at least six weeks.
More simply put, no Nevada district court will exercise jurisdiction over an annulment for a marriage took place outside Nevada unless at least one of the spouses has lived in the State of Nevada for at least six weeks. All district courts in Nevada will exercise jurisdiction over annulments for marriages that took place in Nevada without requiring that either spouse be a Nevada resident.
The Cohabitation Defense to Annulment
Under Nevada law, the prior conduct of a spouse seeking an annulment can ratify a previously voidable marriage. By freely cohabitating in a marriage after the cause for an annulment has been resolved, both spouses lose the right to seek an annulment for that reason. For example, in the case of a child marriage, once the married minor reaches the age of 18, that minor can no longer seek an annulment if he or she freely cohabitates with his or her spouse as a married couple.
The Legal Effects of an Annulment
Annulments are awarded where a marriage contract is voidable by law. This means that when a court voids a marriage through the annulment process, it is as though the marriage never occurred in the first place. This has several legal effects that are distinct from a divorce.
Under Nevada law, an annulment is a lawsuit in rem, which means that the court is allowed to both declare an annulment and regulate the status of the former spouses and their property. See NRS § 125.390. Among the many benefits of a Nevada annulment is that the court will equitably distribute the property of the spouses like it would in divorce proceedings.
Additionally, under NRS § 133.115, an annulment results in the automatic revocation of all wills and trusts written for the benefit of the spouses. If two spouses seeking an annulment do not want their testamentary devises altered by their annulment, then they must either agree in writing to not revoke those devises or request that the judge include a provision in the annulment order maintaining the pre-existing testamentary devises.
Child support may still be sought through Nevada’s child support laws.
Situations Where an Annulment Is Not Required
Like many states, Nevada law has enacted a law that automatically voids certain marriages even without requiring either spouse to seek an annulment. This is because the Nevada legislature views these types of marriages as so repugnant to public morality that no one should have to go to court to invalidate the marriage. Under NRS § 125.290, two types of marriages are automatically void: (1) incestuous marriages and (2) bigamous marriages. If a couple is involved in either an incestuous or bigamous relationship, that relationship is not legally a marriage regardless of whether the couple actually received a valid marriage license. Instead, any marriage license resulting from an incestuous or bigamous relationship is void automatically and carries no legal weight in Nevada.
That said, many spouses who discover that they are in either a bigamous or incestuous marital situation will want to file for a Nevada annulment. In fact, it is a very common practice to do so in Nevada. This is because most spouses value the legal certainty of ensuring that the marriage is actually void. Additionally, without asking a court to adjudicate the void nature of a marriage involving bigamy or incest, the void marriage certificate remains in the public record, which can be confusing to third parties who may believe that the couple is in fact carrying on an illegal marriage. Filing for an annulment in cases of bigamy and incest is good practice even though it is not technically required because it establishes the fact that the filing spouse, or both parties in a case where both parties agree to the annulment, did not intend to be married under those circumstances.
How to File a Nevada Annulment
Filing for an annulment in Nevada is like filing a lawsuit. While it is possible for a layperson to file for an annulment in Nevada without the assistance of a lawyer, it can be very difficult to do so. Annulment litigation procedures are highly technical in nature and procedural mistakes could result in the annulment lawsuit being dismissed by the court. It is highly recommended that any couple or spouse seeking an annulment consult with an experienced family law attorney before proceeding with filing.