Annulment vs. Divorce in Texas: Grounds, Deadlines, and Proof Needed

Choosing between annulment and divorce in Texas is more than a legal decision. The process you choose can shape your financial future, affect your parental rights, and determine how property and debts are handled. Each option comes with its own rules, deadlines, and proof requirements, and the outcome can have lasting consequences. Knowing where you stand under Texas law and taking timely action can make a significant difference in your case.

For trusted guidance, work with a San Antonio family lawyer who understands how to handle both annulment and divorce cases. At Family Matters Law Firm PLLC, we provide clear advice, gather the evidence you need, and advocate for your best interests at every stage. Call (210) 997-2914 today to schedule a confidential consultation and start moving toward a resolution that protects your future.

The Core Difference: Was Your Marriage Legally Valid?

The most fundamental distinction between divorce and annulment comes down to a single question: Was your marriage legally valid from the start?

• Divorce: The legal process of ending a valid marriage. It recognizes that the marriage existed and was legally binding, but is now being dissolved because of issues that arose during the relationship.
• Annulment: A legal determination that no valid marriage ever existed. It is granted when a specific legal defect, known as an impediment, was present at the time the marriage was formed.

This difference is more than a matter of legal wording. It shapes every other aspect of the process, including how property is divided, whether spousal support is available, and the long-term rights of each party.

The Presumption of Validity in Texas Law

Texas law begins with a strong presumption: every marriage entered into is valid. The state’s public policy explicitly seeks to preserve marriages unless there is clear and compelling evidence of invalidity.

For this reason, obtaining an annulment is far more challenging than securing a divorce. A person requesting an annulment is not merely asking to end a relationship; they are asking the court to go against one of the core policies of Texas family law.

The burden of proof rests entirely on the person seeking the annulment. They must overcome the presumption of validity with solid, admissible evidence. This high legal threshold underscores Texas’s interest in family stability and ensuring clear determinations of marital rights and parentage.

“Void” vs. “Voidable” Marriages: A Crucial Distinction

Texas law recognizes two categories of invalid marriages: void and voidable. Understanding the difference is essential.

• Voidable Marriages: These marriages are legally valid until a court declares them invalid through an annulment proceeding. The spouses can choose to stay married or seek an annulment. If no action is taken, the marriage remains legally intact. The seven grounds for annulment (discussed in the next section) all involve voidable marriages.
• Void Marriages: These marriages are never valid under Texas law, regardless of whether a court order is obtained. They are automatically considered null from inception. The two main categories are:
  • Consanguinity: Marriage between close blood relatives, such as a parent and child, siblings, or an aunt and nephew.
  • Bigamy: Marriage in which one spouse is already legally married to another person.

While a person can file a Suit to Declare a Marriage Void and to obtain a court order for record-keeping and clarity, the marriage is legally void whether or not this step is taken.

Annulment in Texas: The High Bar for Erasing a Marriage

To successfully obtain an annulment in Texas, a petitioner must prove that their marriage is voidable by meeting the strict requirements of one of seven specific grounds in the Texas Family Code. Each ground has its own legal standard, a filing deadline, and a high burden of proof.

The Critical “No Voluntary Cohabitation” Rule

For most annulment grounds, the law applies what’s known as the “no voluntary cohabitation” rule. If the petitioner continues to live with their spouse after learning the facts that justify an annulment, they may lose the right to pursue it. This continued cohabitation is treated as acceptance or “ratification” of the marriage, effectively curing the original defect. 

This means time is of the essence in two ways: the statute of limitations is strict, and the petitioner’s behavior immediately after discovery can make or break the case. Although some people may want to “work things out,” remaining in the same household can irreversibly harm their claim. Immediate physical separation and seeking legal advice are essential.

Grounds for Annulment in Texas

Texas law recognizes seven specific situations in which a marriage, though initially presumed valid, can be declared voidable and annulled. Each ground has its own set of rules, deadlines, and evidentiary requirements. Success in court depends on proving the facts that fit one of these categories and meeting all procedural requirements, often within a short time frame. Below is a breakdown of each ground and what it takes to establish it.

Annulment of an Underage Marriage

An underage marriage can be annulled if the person was at least 16 but under 18 at the time of the ceremony and did not have parental consent or a court order allowing it. The petition must be filed within 90 days of the wedding by a parent, legal guardian, or “next friend” of the minor. If the minor turns 18 within that period, they can file on their own. Typical evidence includes the birth certificate, marriage certificate, and testimony confirming that consent was never given and no court order existed.

Under the Influence of Alcohol or Narcotics

If a person was so impaired by alcohol or drugs at the time of the wedding that they lacked the mental capacity to consent, and they did not live with their spouse after sobering up, the marriage can be annulled. Proof often comes from witness statements, receipts for alcohol or drugs, and photos or videos showing the level of intoxication.

Impotency

A marriage may be annulled if one spouse was permanently impotent at the time of the wedding, the other spouse did not know, and they have not cohabited since discovering the condition. While there is no set statutory deadline, the no-cohabitation rule makes immediate filing essential. Medical records and expert testimony are typically necessary to prove the condition’s permanence.

Fraud, Duress, or Force

An annulment is available when one spouse entered the marriage because of fraud, duress, or force, and they have not lived together afterward. Fraud involves deliberate deception or concealment of facts such as infertility, criminal history, or marrying solely for immigration purposes. Duress or force involves threats or coercion so severe that the marriage was not truly voluntary. Evidence may include documents, messages, or witness testimony.

Mental Incapacity

If, at the time of the ceremony, either spouse lacked the mental capacity to understand the marriage because of a mental illness, defect, or condition, the marriage can be annulled provided no cohabitation occurred after regaining capacity or learning of the incapacity. Evidence may involve medical records, diagnoses, and testimony from medical experts or witnesses who observed the person’s mental state.

Concealed Divorce

A marriage can be annulled if one spouse was divorced from a third party within 30 days before the wedding, the other spouse did not know and could not reasonably have known, and they did not live together after discovering it. The petition must be filed within one year of the wedding. Proof usually includes the prior divorce decree, the marriage certificate, and testimony about the lack of knowledge.

Marriage Less Than 72 Hours After License Issuance

If a couple marries before the mandatory 72-hour waiting period following the issuance of their marriage license, the marriage may be annulled unless an exception applies, such as military service. The petition must be filed within 30 days of the wedding. Evidence is straightforward: the license and marriage certificate showing the dates and times are enough to prove the violation.

Ground for Annulment in Texas	Key Requirements	Typical Evidence
Annulment of an Underage Marriage	Party was 16–17 years old at time of marriage without parental consent or court order. Petition must be filed within 90 days. Minor can file after turning 18.	Birth certificate, marriage certificate, testimony showing lack of consent or order
Under the Influence of Alcohol or Narcotics	Spouse was too impaired at wedding to consent and did not cohabit after sobering up.	Witness statements, receipts for alcohol or drugs, photos or videos of impairment
Impotency	One spouse was permanently impotent, the other did not know, and they did not cohabit after discovery.	Medical records, expert testimony confirming permanence
Fraud, Duress, or Force	Marriage induced by fraud, duress, or force. Must not live together after discovering fraud or being freed from coercion.	Documents, messages, witness testimony
Mental Incapacity	At time of marriage, spouse lacked mental capacity. No cohabitation after regaining capacity or learning of incapacity.	Medical records, expert diagnoses, witness testimony
Concealed Divorce	One spouse divorced within 30 days before marriage, other did not know and could not reasonably know. Must file within 1 year. No cohabitation after discovery.	Prior divorce decree, marriage certificate, testimony of lack of knowledge
Marriage Less Than 72 Hours After License Issuance	Marriage occurred before 72-hour waiting period expired (unless exception applies). Petition must be filed within 30 days.	Marriage license and certificate with dates and times

Divorce in Texas: The Standard Path to Dissolution

While annulment is a specific remedy for marriages that were never legally valid, divorce is the standard, far more common, and procedurally accessible path for ending a valid marriage in Texas. If the strict requirements for annulment cannot be met, divorce becomes the necessary alternative.

Residency and Waiting Period Requirements

To file for divorce in Texas, certain residency and timing requirements must be satisfied. At least one spouse must have lived in Texas for a continuous period of at least six months before filing. In addition, that spouse must have lived in the county where the divorce is filed for at least the last 90 days. These requirements are more restrictive than those for annulment, which only require that one party live in Texas or that the marriage took place in the state.

After the Original Petition for Divorce is filed with the court, Texas law imposes a mandatory 60-day waiting period before the divorce can be finalized. The 61st day after filing is the earliest that a judge may sign the final decree. This cooling-off period is designed to give couples time to reflect, prevent impulsive decisions, and allow for the possibility of reconciliation. Exceptions are rare and are generally limited to cases involving a conviction for family violence or where an active protective order is in place.

Grounds for Divorce: No-Fault or Fault-Based

Texas law allows for both no-fault and fault-based divorces. The choice between these two approaches is not only about assigning blame; it can be a strategic legal decision that may affect the financial outcome of the case.

No-Fault Divorce (Insupportability)

This is the most common ground for divorce in Texas. It applies when the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. No proof of misconduct is required, making this option simpler, less adversarial, and generally less costly.

Fault-Based Divorce Grounds

A spouse may file for divorce alleging fault on the part of the other spouse. The main fault grounds in Texas include:

• Cruelty: Willful and persistent infliction of suffering that makes living together insupportable.
• Adultery: Voluntary sexual intercourse with someone other than one’s spouse.
• Felony Conviction: Conviction of a felony with imprisonment for at least one year.
• Abandonment: Leaving with the intent to abandon and remaining away for at least one year.
• Living Apart: Living separately without cohabitation for at least three years.
• Confinement in a Mental Hospital: Confinement for at least three years with a poor prognosis for recovery.

While proving fault is not required to obtain a divorce, it can influence how a judge divides marital property. For example, if one spouse committed adultery and spent significant community funds on an affair, the court may award the other spouse a larger share of the marital estate to achieve a just and right division.

Choosing between no-fault and fault-based divorce involves weighing the simplicity and lower cost of a no-fault process against the potential for a more favorable property division in a fault-based case, which often requires more time, evidence, and legal expense.

How Your Choice Impacts Your Future

The decision between annulment and divorce reaches far beyond the courtroom. It can have lasting, and often irreversible, consequences for property, debts, children, and long-term financial security.

Dividing Property and Debts

The most significant financial difference between annulment and divorce lies in how the law treats the property and debts acquired during the relationship.

In a Divorce

The court’s primary responsibility is to divide the community estate. Texas is a community property state, which means that all assets and debts acquired by either spouse from the date of marriage until the divorce are presumed to be jointly owned. This includes homes, bank accounts, retirement savings, mortgages, car loans, and credit card balances. 

The division must be “just and right,” meaning fair under the circumstances, but not necessarily an exact 50/50 split. Judges can consider factors such as fault in the breakup, differences in earning capacity, and the needs of any children when deciding how to divide property.

In an annulment

Because the marriage is treated as if it never legally existed, there is no community estate to divide. The court instead applies broad equitable principles to separate the parties’ finances, with the goal of restoring each person to the position they were in before the marriage. Property generally goes back to the person whose name is on the title, and debts stay with the person who incurred them. This can produce harsher outcomes than divorce. 

For example, if one spouse took on significant credit card debt in their own name for shared living expenses, that debt would likely remain solely their responsibility in an annulment, even though it would be considered community debt in a divorce.

Protecting Your Children

Whether a marriage ends in annulment or divorce, the law puts the well-being of the children first.

Legitimacy of children: Texas law makes it clear that children born or adopted during a marriage that is later annulled are still considered legitimate. They retain all rights to inheritance and financial support from both parents, just as they would if their parents divorced.

Custody, visitation, and support: In both annulment and divorce cases involving children, the parties must file a Suit Affecting the Parent-Child Relationship (SAPCR). This allows the court to decide on:

• Custody (Conservatorship): What decision-making rights and responsibilities the parents have.
• Visitation (Possession and Access): When and how the children spend time with each parent.
• Child Support: How much financial support one parent must provide for the children.

In every SAPCR, the court’s guiding standard is the best interest of the child.

Long-Term Financial Security

The choice between annulment and divorce can have major implications for future financial stability, particularly in the areas of inheritance rights and Social Security benefits.

Inheritance rights: Both divorce and annulment automatically void any provision in a will that names the former spouse as a beneficiary, and they terminate the ex-spouse’s right to inherit under Texas intestacy laws. If you wish to leave property to a former spouse, you must create a new will or update beneficiary designations after the marriage is dissolved.

Social Security benefits: This is where the two paths diverge significantly.

• After a divorce: Federal law allows a person to claim Social Security spousal or survivor benefits based on an ex-spouse’s work record if the marriage lasted at least 10 years and other eligibility requirements are met. These benefits can be substantial, especially for spouses who earned less or were out of the workforce. 
• After an annulment: Because the marriage is treated as if it never existed, a person cannot claim spousal or survivor benefits on the annulled spouse’s record, no matter how long they were together.

For couples married over 10 years, this can be a high-stakes decision. A spouse with valid grounds for annulment must carefully weigh the advantages of voiding the marriage against the potential loss of future Social Security income.

San Antonio Family Lawyer Linda Leeser

Choosing the Right Path for Your Situation

Whether you are considering annulment or divorce in Texas, the decision you make will have a lasting impact on your finances, your children, and your future. Understanding the legal grounds, meeting strict deadlines, and providing the right proof are essential steps in protecting your rights. The process can be emotionally challenging, but you do not have to face it alone.

At Family Matters Law Firm PLLC, we are committed to helping clients make informed decisions and achieve fair outcomes. Our team can assess your circumstances, explain your options in plain language, and represent you with skill and compassion. Call (210) 997-2914 today to schedule a confidential consultation and take the first step toward resolving your family law matter with confidence.