Annulments in Colorado

JurisdictionColorado,United States
CitationVol. 22 No. 10 Pg. 2249
Publication year1993
22 Colo.Law. 2249
Colorado Lawyer

1993, October, Pg. 2249. Annulments in Colorado


Vol. 22, No. 10, Pg. 2249

Annulments in Colorado

by E. Stefan Fredricksmeyer

Under the Uniform Dissolution of Marriage Act ("UDMA"), certain marriages can be terminated in Colorado by way of a decree of declaration of invalidity.(fn1) There are certain advantages to obtaining an annulment instead of a divorce, and Colorado practitioners should always determine whether an annulment is possible for their client before they file for a dissolution of marriage.(fn2)

Despite this fact, relatively few petitions for invalidity are filed in Colorado each year.(fn3) This can be explained in part by the limited scope of the Colorado annulment statute. Nevertheless, this author believes the under-used annulment statute can and should be utilized more often in Colorado. This article examines the annulment statute in depth and points out its advantages and limitations. Due to the dearth of Colorado case law interpreting the annulment statute, this article also considers the treatment of annulment in jurisdictions with similar statutes.


In 1971, Colorado adopted the UDMA, codified at CRS § 14-10-101 through 133. The UDMA is substantially based on the Uniform Marriage and Divorce Act ("UMDA"). CRS § 14-10-111 is similar to § 208 of the UMDA, which closely follows the principle, established at common law and codified in earlier state statutes, that the state has an interest in proscribing or at least attempting to restrict marriages which, due to some defect existing at the time of the marriage, were voidable or prohibited at the time of their inception.(fn4) This is in contrast to the purpose underlying dissolution of marriages, which is to allow the termination of a marriage for causes arising during the marriage.(fn5)

The traditional common law grounds for annulment were based on lack of capacity to consent to the marriage (mental incapacity, fraud, duress and sham marriages), physical incapacity, lack of age and marriages prohibited by law.(fn6) The common law also distinguished between void and voidable marriages. However, this distinction was more important in theory than in practice because most parties to a void marriage found that, as with a voidable marriage, they needed to obtain a court order declaring the marriage void in order to avoid confusion, unexpected claims and possible prosecution for bigamy or polygamy.(fn7) Accordingly, CRS § 14-10-111 makes no distinction between the two.(fn8)

Decree: Grounds and Filing Time Limits

CRS § 14-10-111(1) lists the exclusive grounds on which an annulment may be obtained in Colorado. They closely follow the common law grounds mentioned above. The grounds must be pleaded and proven. Defenses to most of the grounds can be asserted because, unlike a dissolution of marriage suit, an action for declaration of invalidity is not a no-fault action.

Except with prohibited marriages, failure to file a lawsuit within the requisite time period will validate the marriage. If this happens, the only remedy available is dissolution. The petitioner has the burden, by "clear and convincing" evidence, of proving grounds exist for an annulment action. Whether proper grounds exist is a question of fact to be determined on an ad hoc basis.(fn9)


Under CRS § 14-10-111(1)(a), an annulment may be obtained on the ground that at the time of the marriage, one of the spouses lacked the mental capacity


to consent to it. The incapacity can be due to some sort of permanent, organic condition such as insanity, mental retardation, incompetence or senility. It also may be due to a temporary condition caused, for example, by excess stress or grief, temporary insanity or by being under the influence of an incapacitating substance such as alcohol or drugs.

Because a marriage is based on a contract, a trial court will likely look to general contract law for assistance in determining whether one of the parties lacked the mental capacity to marry, with the threshold question being whether the party in question was capable of understanding the nature of the marital relationship.(fn10) Either party aggrieved by the unfortunate union, as well as the legal representative of the allegedly incapacitated party, may bring an action for invalidity on this ground, as long as it is commenced within six months after discovery of the condition by the complaining party.(fn11)

CRS § 14-10-111(1)(b) authorizes a court to invalidate a marriage if one of the parties was incapable of consummating it by sexual intercourse and the other party, at the time of the marriage, was ignorant of this condition. Either of the spouses may bring this action within one year from the date the petitioner discovered the condition.(fn12) Oddly, this appears to allow the handicapped spouse, but not the other spouse, to initiate the action even if the handicapped spouse knew of his or her incapacity at the time of the marriage.

The purpose of this section is to protect the victimized spouse from a sexless, and perhaps childless, marriage. This fits in with one of the primary reasons society takes such an interest in marriage: the propagation of children. A literal reading of this section suggests that a venereal disease, even AIDS, would not be grounds for annulment unless it made intercourse physically impossible (which is highly unlikely). However, a court taking a more expansive view of CRS § 14-10-111(1)(b) could invalidate a marriage under this section if the disease created a climate which made intercourse impossible for emotional reasons, even though it still may have been physically possible. Colorado is silent on this, but other jurisdictions have held that impotence, in the context of annulment, may be the result of not...

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