Published on:

THE DIFFERENCES BETWEEN DIVORCE, ANNULMENT, AND LEGAL SEPARATION

Divorce, Annulment or Legal SeparationMarried couples who have chosen to part ways may wonder about their options. Most people are not aware of the differences between divorce, annulment, and legal separation.
Annulment
An annulment is when a court says your marriage is not legally valid. Annulments are rare, and can only be granted by a judge. Unlike a divorce, an annulment treats the marriage as if it never occurred. A marriage is always considered invalid if it is incestuous or bigamous (marriage to more than one person). Marriages may also be annulled if the marriage occurred due to force or fraud, if one of the spouses is too young to marry or already married, or if there is physical or mental incapacity. Similar to a divorce, the judge presiding over the annulment may determine issues of child custody, child support, alimony, and division of assets.
Legal Separation
A legal separation is an agreement by a married couple to live separately. Typically, the simple act of living apart or agreeing to separate for a period of time is not enough for a legal separation; it requires the spouses to legally file for separation. A legal separation does not end the marriage, and you cannot marry someone else if you are legally separated. Couples that have a religious objection to divorce often choose legal separation. Other times couples choose legal separation because they have concerns about the availability of benefits, like insurance, for one spouse. However, some insurance policies will not cover a spouse following a legal separation. A legal separation allows couples that do not want to divorce to live apart and have a judge assist with the process. The judge can help decide issues like division of money and property, visitation, and child support.
Divorce
A divorce is a dissolution of marriage, and officially ends the marriage. After you are divorced, you are considered single again. You may marry again if you would like. During the divorce proceedings, a judge can order child support, spousal support, custody, visitation, restraining orders, and division of property. Spouses may choose between two types of divorce: “no-fault” or “fault-based” divorce, depending on the laws of the state in which the petitioner resides. No-fault divorces allow a spouse to file for divorce without blaming the other spouse for the dissolution. The grounds for a no-fault divorce include irreconcilable differences, irremediable breakdown of the marriage, or loss of affection. In some states, spouses may also file for a fault-based divorce. A spouse may choose a fault-based divorce to avoid the required waiting period or to influence the judge when deciding child custody, child support, alimony and property division. The grounds for a fault-based divorce include adultery, abandonment, domestic violence, and substance abuse.
Deciding whether to obtain an annulment, legal separation, or divorce is a decision each divorcing couple needs to make based on their own circumstances. For example, California requires a married couple to live in the state for six months before they may file for divorce, so they may choose to legally separate until the six month period expires. An attorney will be able to provide the best advice, given your particular circumstances, and can advise you on the best option for you.