FAQ Regarding Separation and Annulment Law

There are legal options you should consider before filing for a divorce. Two such options are annulment and separation. Here are some FAQs on annulment and separation.

What is the difference between annulment and divorce?

In some ways, an annulment is different from a divorce while in some ways it is the same. An annulment like a divorce legally ends a marriage. However the main difference is that once a marriage is annulled, it will be like the marriage never happened in the first place. Many people prefer annulment over divorce as annulment does not carry the social stigma attached to a divorce. Religious reasons are another reason why some people prefer annulment over a divorce – some religious groups do not allow a divorcee to remarry. In such cases, an annulment would allow the person to overcome this obstacle to remarriage. To have your marriage annulled you must prove the existence of one or more of the following:

  • Fraud: Your spouse misrepresented or lied to you about some important information and had you known the truth before the marriage, you would not have consented to the marriage.
  • Concealment of fact: Your spouse concealed a vital fact from you such as a prior conviction for a felony offense or involvement in a criminal activity and if you were aware of this fact, you would not have entered into the marriage.
  • Impotency: Your spouse is suffering from permanent and incurable impotency.
  • Misunderstanding: A simple yet significant misunderstanding between the spouses such as one spouse wanting to have children but the other is not interested.

You can get a civil annulment from the court. If you get a divorce from a court, and you are a member of the Roman Catholic Church, you can get a religious annulment from the court. This will enable you to remarry and the church will recognize your new marriage.

Chances of a successful annulment are higher in case of couples who have been married only for a short time. Majority of the annulments involve couples who have been married only for a few weeks or months. In such cases, the division of property is fairly simple and often there are not children and so there is no issue of child custody and support. However there are state laws that can affect the issue of property division and child custody, visitation and child support if a long term marriage is annulled. Children from an annulled marriage will be considered as legitimate children for all legal purposes.

Once two individuals are married, is it possible for them to be considered as separated?

Yes. But much there is a lot of confusion associated with the term “separated” mainly due to the fact that there are different types of separation:

  • Trial Separation: In trial separation, the spouses live apart for a period of time to determine whether or not they should continue with the marriage. This type of separation does not affect the legal rights of the spouses. The law does not recognize trial separation. It is a period of time during the marriage.
  • Living Separately: Sometimes, the couple may start living apart with no intention whatsoever of continuing the marriage. This type of a separation can affect the legal rights of the spouses depending on the state law. In some states assets and debts acquired during this period are considered as separate property while in other states it is still marital property until the spouses file for divorce.
  • Permanent Separation: A permanent separation is where the couple decide to separate for good. In most states assets and debts during a permanent separation are considered as separate property but some debts acquired during a permanent separation are considered as martial debts if it is used for family purposes such as rent, home maintenance, utility payments, etc. However, courts do not consider permanent separation as legal separation. For legal separation one or both spouses file separation proceedings in a court of law.
  • Legal Separation: In a legal separation the parties continue to remain married but live apart. The court will determine the rights and obligations of the parties in a legal separation. Unlike other forms of separation where court intervention is not required, a legal separation must be approved by the court. The court will decide on issues like property division, child custody and support. In some states, one spouse may be ordered to pay maintenance while the legal proceedings are pending.

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