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Divorce, Separation, and Annulment

Most couples seek an absolute divorce. When you receive a Judicial Decree that grants you and your spouse an absolute divorce the marriage is forever terminated and you are free to re-marry. 

Divorce is the ending of a marriage ordered by a court.  In many states,  you could ask for two types of divorce: absolute and limited. When the court decrees (orders) an absolute divorce, it means that the divorce is permanent, permits remarriage, and terminates property claims. When the court decrees a limited divorce, it means that the divorce is not permanent, does not permit remarriage, and does not terminate property claims (but the limited divorce may settle these claims); it serves only to legalize the separation and provide for support. You are not required to get a limited divorce before you can get an absolute divorce - there is a common misconception that you need a legal separation in order to get a divorce. This is not the case. 

Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case - the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories - (1) Consent Divorces - the parties agree on all major issues; and (2) Default causes - where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.

There are other options to an absolute divorce.

The first option is separation which may be the best solution if neither party wishes to remarry or if there are other factors which militate against divorce - for example religious grounds, financial considerations or even the possibility of circumstances changing to such an extent that a reconciliation in the future becomes an option. 

There are basically two forms of separation:

separation by agreement where the parties simply choose to live apart and where they may or may not enter into a formal and binding agreement which they have ratified by the court setting out the terms upon which they will live apart. 

judicial separation or what is known as a limited divorce in most jurisdictions and which is part way between a separation agreement and a divorce because the parties go to court and, having shown grounds as to why they should not live together, obtain an order from the court which, does not dissolve the marriage but contains similar requirements to a divorce in terms of maintenance and arrangements for children. This is quite an uncommon solution and is the one most favored by those with religious objections to divorce itself.

The final option is even less common than judicial separation, and that is annulment where an order is obtained from the court that the marriage was not valid either because it was void from the outset - for example because the parties were not free to marry - or because it is voidable at the instance of one of the parties - for example because it has not been consummated. For a variety of reasons very few annulments are granted by our courts.

Annulment establishes that your marital status never existed. The court will declare that you were never married. In many states there are are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it's a good idea to do so. In the case of an annulment, a marriage must be "totally void" in order for it to be considered annulled. 

There are two characteristics of a "totally void" marriage: 

  • the marriage posses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses; and 
  • no direct step or proceeding to annul is necessary (although the latter may be desirable)
One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void. 

Another defective marriage is one done between "blood" relatives.

The second type of annulment is called voidable. A voidable marriage can only be annulled by going to court and having it declared void.  Along with obtaining an annulment for bigamy and for lack of consensual age, a marriage may be declared void if the parties did not really intend to marry or if they are incapacitated, as in insanity, intoxication, fraud, and duress. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.

Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these considerations, a court will look to granting a divorce instead of an annulment.

   

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