Separation and Annulment Law

Divorce is the most common path that couples take when a marriage isn't working. However, you may have a few options other than divorce, such as separation or a civil annulment. This article provides information about separation and annulment law.

Is Annulment Law Different than Divorce?

In some ways, civil annulments are no different than divorces, but in other ways, annulments differ from divorces. Like a divorce, a civil annulment is a court order that officially brings about the end of a marriage. However, unlike a divorce, a civil annulment has the legal effect of making it such that the marriage never existed in the first place.

Reasons to Opt for an Annulment over a Divorce

Some people may prefer a civil annulment rather than live with the stigma that they may associate with a divorce. There are other people that prefer civil annulments for religious reasons, as well. Some churches and other religions don't allow a person to remarry that has had a prior divorce. In these situations, a civil annulment may allow that person to get remarried within their church.

There are various legal grounds that must be shown before a civil annulment can be obtained by a married couple. In general, to get a civil annulment, you will have to prove at least one of the following:

• Fraud or Misrepresentation: This could mean that one spouse lied about their ability to reproduce, misrepresented their age, or did not explain that they could not get legally married because they were still in a prior marriage.
• One Spouse Concealed Something from the Other: This could mean that one spouse did not inform the other of an addiction of some sort, a prior felony conviction or jail time, involvement in a violent gang, an ongoing criminal activity, a sexually transmitted disease, or other health factors. Health factors could include mental illness or any physical disease that creates an incapacity to function within the partnership.
• Inability or Refusal to Consummate the Marriage: This refers to the inability or refusal of one spouse to have sexual intercourse with the other.
• A Simple but Significant Misunderstanding: One of the most common reasons for a civil annulment is a misunderstanding that one spouse wants to have children while the other does not.

If you can show one or more of the above, you may be able to get a civil annulment.

You have a better chance of having your marriage civilly annulled if you have been married for only a short time. Indeed, a large majority of annulments are granted to marriages that have lasted only a few weeks or months. It's easy to divide assets and property, and there are generally no children that have to be considered for issues of custody, support, or visitation.

However, states typically do have laws in place that govern civil annulments of all marriages. These laws and rules will provide guidance for dividing property after a civil annulment, as well as issues of child custody, visitation rights, and the parents' support obligations. Children whose parents have had their marriage civilly annulled are not considered illegitimate by the law.

In all cases, the marriage to be civilly annulled must be a valid marriage. For a marriage to be valid, it must satisfy the criteria for such a union. Such criteria can vary from one state to the next. It's important to review the laws of your state to ensure that your marriage meets these criteria. In addition, just as divorce processes can be different depending on where you are located, so too can civil annulment processes. Keep this in mind as you consider your options.

Generally speaking, what you must note, however, is that you can't get a civil annulment for domestic violence. Typically, domestic violence does not inherently qualify as grounds for an annulment. However, if you could show that the domestic violence is related to any one of the reasons for a civil annulment laid out above, you might succeed in obtaining the annulment regardless.

Different Types of Separation

In a legal sense, two people can be both "married" and "separated" at the same time. This often causes confusion, which is due to the fact that there are four different types of separation:

• Trial separation. If a married couple decides to live separately, this is called a trial separation. During the separation, they might even live in the same house. If the couple decides not to reconcile, the assets they accumulate during the trial separation, as well as the debts they incur, are normally considered to be jointly owned. Trial separations are generally not recognized by the law.
• Living apart. If two spouses no longer live in the same residence, they are living apart. Depending upon the state, living apart could impact your property rights. For states that consider living apart as the first part of a divorce, assets accrued and debts incurred by the individuals during this living apart phase could be classified as separate property and not marital property. However, other states still consider this property to be joint, marital property until a complaint or petition seeking divorce is filed.
• Permanent separation. If a couple finally decides to split up for good, this is often called a permanent separation. In most states, all property received and most debts incurred during a permanent separation are considered the separate property of the spouse that is responsible for the property or debt. If the debt is incurred for certain necessities, like providing for children, during a permanent separation, the debt will still be considered as joint property. Only if one spouse takes the other to court for support payments or custody will a separation be considered a legal separation.
• Legal separation. The step beyond a permanent separation is legal separation. This occurs when a couple splits up and seeks a court-issued judgment for a division of property, child custody, support payments, visitation rights, but not for divorce. If payments are ordered in a legal separation, either for child support or for living expenses, it is generally called separate maintenance. Some states allow separate maintenance to be ordered even if litigation is still pending. Separate maintenance is often the basis for future alimony awards after divorce proceedings.

More Questions About Separation and Annulment Law? Contact an Attorney

As you can see, divorce isn't your only option when it comes to separating from your significant other. Whether you are contemplating an annulment, legal separation, or a divorce you may want to contact a divorce attorney or family law attorney for legal services to discuss your options based on your unique situation. It's important to get legal advice.