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- Legal Separation
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Before filing for divorce, it’s important to have an understanding of all the options available.
Finding the right path for the family involved, whether an annulment or legal separation, can make the transition smoother. Each state has its own conditions that must exist in order to seek an annulment. In addition, some of the legal reasons for nullification of the marriage are subject to time limits.
A legal separation is an alternative to divorce that can be a viable option for spouses who want to work on a marriage, retain the financial benefits of a partnership or have another reason to avoid ending a union. The purpose of this article is to explain the pros and cons of annulment and legal separation while providing information couples can use to form a plan that works for their needs.
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Annulment and divorce are similar in purpose. Each is a legal method for ending a marriage. However, the similarity ends there. Whereas a divorce breaks the marriage bond, an annulment erases a marriage, implying that it never existed at all. After a judge grants an annulment, both parties are legally considered single rather than divorced.
What is an Annulment?
The two basic types of annulment are religious and civil. The Catholic Church does not sanction divorce, so in order to recapture the right to marry within the church, Catholic couples can seek an annulment through the church hierarchy. However, they must also obtain a civil, or legal, annulment should they wish to ever legally remarry. In contrast, any couple can seek a civil annulment for legal rather than religious reasons.
The requirements for a civil annulment vary slightly depending on jurisdiction, but a couple meeting one of the following requirements may qualify:
- Lack of consummation
- Incest or bigamy
- Mentally unaware during the wedding
- One or both parties forced to marry
Misrepresentation or fraud constitutes grounds for a civil annulment. When one of the people in the marriage lies about a significant fact prior to the ceremony and the lie is revealed later, the other person can seek annulment. Significant facts may be the ability to have children, that the person is of legal age to marry or that the person is not married to someone else. Other examples of fraud are marrying under a false name or marrying solely to gain citizenship.
If the couple is physically or mentally unable to consummate the marriage, they may qualify for an annulment. Technically, an unconsummated marriage is not a marriage.
Incest or bigamy is another form of misrepresentation. A parent and child cannot marry, full or half siblings cannot marry each other, uncles and nieces or aunts and nephews cannot marry, and first cousins cannot marry. If a couple marries such a family member, the law considers the act incest, and the marriage is invalid. Bigamy is a crime that occurs when one or both of the parties in the marriage are legally wed to someone else. The previous marriage legally supersedes the new one and renders it invalid.
The legal age of consent for marriage is 18 years old in all but two states. In Mississippi, the legal age of consent for men is 17 while for women it is 15. In Nebraska, both parties must be at least 17 years old. If one or both people are younger, typically no younger than 16, they can still marry with the consent of their parents. If one or both people in a marriage are younger than the legal age of consent and do not provide proof of parental permission, this makes the marriage invalid.
Being mentally unaware during a wedding ceremony is another cause for subsequent nullification of the marriage. The lack of awareness may be due to alcohol, drugs or a psychological condition.
Being compelled to marry under threat of violence is grounds for annulment too. This is likely to be more difficult to prove than a clear-cut issue such as bigamy. Proof constitutes compelling evidence of a threat of injurious violence. The threat could come from one of the persons in the marriage against the other or could be from an outside source, such as a parent or other interested party.
The Mechanics of Annulment
Specific regulations apply to annulments. One of these is the time period in which a marriage is eligible, and the time limit can vary depending on the reason for the nullification. For example, in California, an annulment based on underage must be filed within four years of the party turning 18. However, in the case of bigamy, the complainant may seek annulment anytime while the first spouse is still alive. Thus, determining the time limits within the jurisdiction where the couple lives is a prerequisite to seeking an annulment.
While the specific steps differ somewhat by jurisdiction, the basic mechanics of obtaining a civil annulment typically include the following:
- Filling out paperwork similar to the forms for divorce, giving the reason that the marriage should be annulled
- Submitting the forms for review and filing by an attorney
- If property division and/or child custody is at issue, seeking legal help
- Having the paperwork served on the other party in the marriage
- Waiting the mandated time period for a response
- Appearing in front of a judge for a court hearing
Pros of Annulment Versus Divorce
- Unlike divorce, in many states annulment is retroactive to the date of the marriage.
- Annulment eradicates the marriage and any financial or familial obligations it entailed whereas the divorce process requires they be addressed.
- After an annulment, both parties walk away with whatever they brought to the marriage while financial disputes often cause delays in a divorce.
Cons of Annulment Versus Divorce
- If the annulment does not go through, some states require all new paperwork for divorce.
- Time constraints and specific regulations can make obtaining an annulment difficult while no time limits and no-fault divorce laws simplify the divorce process.
- The law does not determine what happens to property the couple acquired during the marriage whereas the judge determines property division in a divorce.
The Results of a Marriage Annulment
For couples that fulfill the legal requirements for annulling their marriages, the process is simpler and less complex than divorce. However, for those who have been married for several years prior to an annulment action, complications can interfere with a clean break. For example, one party is forced to leave the family home without court ordered recompense. The court does not mandate spousal maintenance or child support payments. One parent may lose contact with any children since an annulment does not include a parenting plan. However, with the help of a family law attorney, couples can solve these problems in a mutually agreeable manner.
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When a couple no longer wants to live together but is unready or unwilling to get divorced, legal separation is an option. While the vast majority of spouses who separate ultimately divorce, about 15 percent remain legally married indefinitely.
What is Legal Separation?
A legal separation is a legal contract outlining the duties and rights of a couple while they are still married but living apart. The contract serves as an agreement about how the couple will manage its affairs and assets while living separately. For the contract to be legally binding, it must be recognized by a judge. Until that point, the status of the marriage may technically be classified as a different form of separation.
How does Separation Differ from Divorce?
The primary way in which separation differs from divorce is that the couple remains legally married. It is often a stepping stone on the way to full-fledged divorce and may be used by a couple to make absolutely sure that the marriage should end once and for all.
Types of Separation
Although a legal separation is the only type of separation that directly involves the courts, other forms of separation can affect the division of property and debt while a couple remains legally married.
- Trial Separation – A trial separation is typically used to determine whether or not a marriage should continue. While it technically has no legal impact, any property or debt that is acquired during a trial separation is considered to be acquired during the course of the marriage and continues to be considered marital property. That’s true even if the couple never gets back together.
- Living Separately – Unlike a trial separation, living separately means that a couple is living apart and has no intention of getting back together. Many couples end up living separately because they are in states that have mandatory waiting periods prior to the finalization of a divorce. While living separately, debt and property that are acquired are treated differently depending on the state where a couple resides. In some states, all debt and property that are acquired are considered marital property until a divorce complaint has been officially filed. In other states, property and debt that are acquired while living separately but prior to the couple officially deciding to separate are considered marital property; property and debt acquired after the decision to separate permanently is considered separate. Finally, in other states, property and debt that are acquired while living separately are considered separate from the moment the couple starts living apart.
- Permanent Separation – A couple is considered to have a permanent separation once the decision to separate for good has been made. There’s no legal paperwork involved, but in most states, property or debt that’s acquired once a permanent separation begins is considered the separate responsibility of each spouse. Debt that’s acquired to support the family unit, including mortgage payments, home maintenance and child care expenses, is considered joint debt if it occurs after permanent separation but before divorce.
- Legal Separation – With a legal separation, paperwork is filed in family court, and the resulting court order mandates the duties and rights of each spouse while they are still married but living separately. The court decides on many of the same issues as it does during a divorce, including spousal and child support. Different terms are used to differentiate this type of maintenance from those that are ordered during a divorce. Other issues that are decided by the court and outlined in the resulting court order include the division of property, child custody and child visitation.
Advantages of Separation
Why do some couples opt for legal separations rather than heading straight for divorce? A few possible advantages of separation include:
- Ethical or Religious Reasons – Couples who are opposed to divorce for ethical or religious reasons find legal separation to be a good compromise.
- Possible Reconciliation – Sometimes, a couple may still hold out hope for future reconciliation. Legal separation provides the opportunity to potentially work things out so that the marriage can continue.
- Waiting Period – In states that have mandatory waiting periods prior to divorce, which typically last six months, separation is preferred to continuing to live together.
- Health Insurance Coverage – If one spouse relies on the other for health insurance, coverage may continue as long as an actual divorce doesn’t occur.
- Tax Benefits – Some couples prefer to avoid divorce in order to enjoy certain tax benefits, including larger deductions.
- Pension – Sometimes, a spouse may not benefit from the other’s social security or other pension until the marriage has lasted a certain length of time. In the meantime, the couple may opt for legal separation.
- Home Sale – Whether home values are down or the logistics of selling the family home are difficult for other reasons, legally separating may be the best course of action.
- Social Reasons – Some couples simple prefer to continue to be identified as married.
Disadvantages of Separation
There are downsides to opting for separation instead of divorce. A few examples include:
- Remarrying is Off the Table – Until a couple divorces, neither spouse can get remarried.
- Health Insurance – Some health insurance policies won’t continue coverage when a legal separation occurs.
- Binding Contract – The contract that’s filed during a legal separation may be legally binding when a divorce occurs.
- Financial Ties – While legally separated, a couple is still tied together financially in many ways. One spouse’s activities may negatively impact the other’s credit rating, for example.
- Shifting Financial Situations – Between a legal separation and a divorce, one spouse’s financial situation may change in a way that negatively impacts things like alimony.
Although rare, legal separation may be a reasonable option for couples who aren’t quite ready to cut ties permanently. Before opting for a legal separation, a couple should carefully consider the laws in their state to avoid unpleasant surprises down the road.
With a variety of options available to spouses in crisis, getting an, understanding of annulment and legal separation can help. When spouses are breaking up, it can be an emotionally charged time – and also a highly personal experience. What method is right for one couple may not be right for another pair. .
Understanding the ramifications of each process is the best way to choose the method appropriate for the circumstances. Regardless of what process is chosen, when children are involved the concern for many spouses is on how to protect dependents from a potentially grueling proceeding.