It’s generally difficult to convince a court to grant you an annulment rather than a divorce. An annulment is a judgment declaring that there was something so wrong with your marriage, the law can't recognize it as having existed. Divorce “undoes” your marriage; annulment erases it entirely. Grounds vary, but most jurisdictions recognize physical incapacity as a reason for annulment.
Physical incapacity means that one or both partners are incapable of “consummating” the marriage. In layman’s terms, they’re physically unable to engage in sexual intercourse. Impotence is a common example, but some courts will accept an innate abhorrence of the sexual act. Women can be physically incapable of sexual relations as well as men, due to surgical procedures or complications, or congenital problems. In the legal sense and in association with annulment, physical incapacity always relates to sexual marital relations.
An inability to engage in intercourse is usually not grounds for annulment in itself. Other factors must also exist, although the criteria vary by state law. For example, if a spouse is impotent, California law requires that the condition be incurable. In Illinois and Minnesota, you must not have been aware of your partner’s physical incapacity prior to the marriage. In New Jersey, if your spouse becomes impotent or unable to engage in sexual relations after the date of the marriage, you cannot have your marriage annulled. Generally, once you find out that your spouse can’t consummate your marriage, you have only a limited amount of time to do something about it. Illinois gives you only 90 days to file for an annulment after you discover your partner’s incapacity, but if you live in Minnesota, you have a year. In California, you can wait four years after the date of your marriage to file for annulment on grounds of physical incapacity.
Proof is another hurdle you must overcome before a court will grant you an annulment on grounds of physical incapacity. A judge won’t just take your word for it. Some courts might require medical records. If your spouse does not want an annulment, it’s unlikely she will voluntarily submit to a medical exam to prove she’s incapable of having sex. The court might order her to see a physician to establish proof, or a judge might grant the annulment simply because she refuses to provide proof that she’s not incapable.
You may be unable to produce concrete evidence of your spouse’s incapacity, or you may simply be reluctant to air intimate details of your marriage in a courtroom. If you discover that the annulment process involves obstacles you can’t overcome, a no-fault divorce is usually an easier option. With such a divorce, you do not have to prove your grounds and your spouse can't contest them. However, some states may require that you live separately for a period of time before you can file for divorce on no-fault grounds.