Divorce and Divorce Alternatives
Most people automatically think of divorce when they think of ending a marriage, but in fact married couples who are separating may have a variety of legal options available to them.
Divorce
Divorce, known in some states as "dissolution of marriage" is the most common legal action when a married couple separates. The legal effect of a divorce, or dissolution, is to say that a marriage did exist, but is no more. While certain obligations, primarily financial, may extend beyond the divorce, they are no longer the obligations owed to a spouse; these obligations are created by the divorce decree.
Although the specific procedures, waiting periods, and technical requirements vary somewhat from state to state, there are basically two ways to obtain a divorce decree. One is to work out an agreement with your spouse, settling between the two of you how your property and your debts will be divided, agreeing on custody and visitation issues if you have children, and submitting the agreement to the court for approval by a judge.
Generally speaking, it's less expensive and less stressful when parties are able to make such agreements, although it's always advisable for each party to have an attorney acting on his or her behalf when the agreement is drawn up and signed.
Often, however, the divorcing parties aren't able to agree on issues like custody, visitation, child support, property division, debts, and alimony. Then, those issues are decided by the court in a contested divorce hearing. In those circumstances, the parties submit information to the court about their relative incomes, living conditions, relationships with their children, and more, and the court uses that information to determine who should have custody of the children, how much visitation and child support to award, and how the property and debts should be divided between the parties.
Legal Separation
Most states offer a procedure known as a "legal separation." In a legal separation, if you and your spouse have lived apart for a certain length of time (which varies from state to state), either of you can file a petition asking the court to order the other party to provide maintenance (which sometimes referred to as alimony) while you continue to live apart. Some people may find legal separation preferable to a traditional divorce for religious, economic or other reasons. Indeed, some couples enter into a legal separation in order to work on a faltering marriage. Many states offer a procedure by which a legal separation can be converted to a divorce proceeding at a later date.
Annulment
An annulment is a legal proceeding which seeks to dissolve a marriage on the grounds that it was not lawful in the first place-for example, the parties were underage when they married or were not legally competent to enter into a marriage. The grounds for an annulment vary from state to state, but are very narrow, and annulment will not be available to most people seeking to end a marriage.
Some of the common grounds for annulment in some states include:
- A party lacked capacity to consent to the marriage, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances,
- A party was induced to enter into a marriage by force, duress or fraud;
- A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
- A party was a minor and did not have the consent of his parents or guardian or judicial approval; or
- The marriage is otherwise prohibited by law.
Annulment should not be confused with the religious concept of annulment, which may share some possible grounds with a legal annulment, but is an entirely separate procedure in a religious (as opposed to legal) forum.