Separation and Annulment Law

Divorce is couples' most common path when a marriage isn't working. There are 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?

Civil annulments are like divorces. A civil annulment is a court order that terminates a marriage. Unlike a divorce, a civil annulment nullifies the marriage as though it never existed in the first place.

Reasons to Opt for an Annulment Over a Divorce

A divorce case terminates a valid marriage. An annulment terminates an invalid marriage. To get an annulment, some fact about it must make it invalid or illegal under state law. Some of the legal grounds for annulment may include:

  • Fraud or Misrepresentation: If one spouse lies about a fact to make the other spouse marry, this is fraud.
  • Mental incapacity or illness: Both parties must be able to consent at the time of the marriage. Mental incapacity or illness removes the ability to consent.
  • Lack of parental consent: All states prohibit Underage marriage without proof of parental consent.
  • Bigamy: All parties must be single at the time of the marriage.
  • Impotence: An inability to consummate the marriage may be grounds for divorce or annulment.

Most annulments are granted for short-term marriages. The most frequent reason for annulment is religious preference. Some religions do not recognize divorce but acknowledge that some couples have irreconcilable differences. Annulment allows these couples to separate and remarry within their faith.

Different Types of Separation

It is possible to be "married" and "separated" simultaneously. There are four different types of separation:

  • Trial separation: Trial separation is when a couple remains married but lives separately. During the separation, they might even live in the same house. Assets and debts acquired during the trial separation are marital property. The law does not recognize trial separations.
  • Living apart: If spouses no longer live in the same residence, they are living apart. Depending on state law, living apart could impact your property rights. Some states require separation as part of the divorce process. State law may consider assets and debts acquired during this time period as separate property. Other states still consider this property to be marital property until the filing of a petition seeking a divorce.
  • Permanent separation: The separation becomes permanent when a couple decides to split up for good. In most states, all property and debts acquired during a permanent separation become separate property. The divorce process begins when one spouse files for divorce or legal separation.
  • Legal separation: The step beyond a permanent separation is legal separation. A legal separation resembles divorce.

Legal Separation

Couples may not want to file for divorce or dissolution of marriage for religious or financial reasons but still cannot live together. The answer is a legal separation. In a legal separation, the couple files a separation agreement, like a divorce agreement, and goes to family court. The judge will issue orders just as in a divorce for things like:

  • Division of property, including real and marital property
  • Child custody, child support, and parenting time
  • Alimony or spousal support
  • In domestic violence cases, the judge may issue a protection order

Legal separation is a part of divorce law and has many of the same requirements. Parties should consult an attorney before engaging in self-help or DIY separation. If there are minor children involved, you should have an attorney's help in any separation or divorce proceedings.

Divorce vs. Annulment vs. Legal Separation

Married couples may not be certain which solution is right for them when they have serious irreconcilable differences in their marriage. There are a few frequently asked questions (FAQs) that may help.

Can You Get Back Together After a Legal Separation?

Yes, but not right away. A legal separation requires a court order to let you return to your marriage. You and your spouse will have to go back to family court and have the judge restore your married status.

Can You Get Back Together After an Annulment?

No. An annulment ends a marriage that never legally existed. In some cases, for instance, where the couple was trying to legitimate a minor child, they may be able to obtain a waiver to remain married.

Can I Get an Annulment for Domestic Violence?

No. Domestic violence does not invalidate a marriage. It can be the basis for a no-fault divorce. You can have your divorce papers filed with the restraining order.

Do I Need an Annulment or Divorce for a Domestic Partnership?

Registered domestic partnerships and civil unions may need to file a Petition for Dissolution of Civil Union to legally separate. There may be residency requirements for these petitions as there are for divorces. Check with your divorce attorney before filing.

More Questions About Separation and Annulment Law? Contact an Attorney

As you can see, divorce isn't your only option when separating from your significant other. Whether you are contemplating an annulment, legal separation, or 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.


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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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