Although the rules of each individual state may vary, there are three options available to the spouses who wish to end their marital relationship: annulment, separation or divorce. Although it is not essential that you retain legal representation for any of these processes, you may wish to do so. A family law attorney, in particular, will be able to provide advice on which option is best for you and any minor children of the household.
An annulment can be sought when the parties wish to completely erase the marriage and render it null and void. An annulment may be sought for religious reasons where the particular faith does not allow for divorce, or where the parties wish to avoid the perceived stigma of being a divorcee.
Either spouse can initiate the annulment process. Some states place time limits on annulments, therefore you will need to investigate whether your marriage is eligible to use the annulment process. For a marriage to be annulled, there must be a valid allegation from one of the spouses that the marriage was based on some form of misrepresentation. Grounds for annulment may differ, but the main grounds include:
- The inability to have sexual relations
- An underage spouse
- The marriage was incestuous
- One of the parties is still married to another person
- One spouse was forced into the marriage
- One spouse was incapable of consenting to the marriage
- Either or both of the parties were intoxicated
Whichever ground is selected, you will need to prove your allegation to the satisfaction of a judge. If the court orders the annulment of the marriage, the parties once again become single and are free to remarry. Children of annulled marriages are legitimate children and the court will resolve issues of child support, custody and visitation when granting the annulment.
If your marriage does not qualify for an annulment, you may wish to consider separation or divorce.
Following a breakdown in the relationship, a married couple may come to an informal arrangement to live apart or lead separate lives. In most states, merely separating or living apart from a spouse does not constitute a legal separation. A legal separation is granted by way of a court-approved order under which each party’s legal rights and obligations are formally set out in detail. Unlike a divorce, the parties in a legal separation remain married.
The court will formalize matters such as property rights, division of assets and debts, child support, child custody and visitation. Some states use the date of physical separation instead of the date of legal separation when deciding on the length of the marriage. This is particularly relevant when it comes to dividing marital assets.
The grounds for legal separation will vary from state to state, but in general, these grounds include:
Your spouse may challenge your reasons for requesting the court order. You will need to provide supporting evidence to prove your allegations and convince a judge to grant the legal separation. Your family law attorney will be invaluable when it comes to gathering the relevant information and preparing the necessary paperwork. If you do file for legal separation and eventually decide to file for divorce, the original paperwork will help to speed up the divorce process.
A divorce will end a marriage; however, unlike an annulment, there will be a record that the marriage existed.
Filing the divorce papers is more formally known as issuing a petition for the dissolution of marriage. Divorce proceedings determine matters such as alimony, division of assets and debts, child custody, support and visitation.
Most states have a residency requirement, requiring at least one of the parties to have lived for at least six months in the state in which the divorce petition is filed. When filing for divorce, the petitioner must give a reason for the request to end the marriage, which are the grounds for divorce. Your choice will further be affected by your state laws and by whether you intend to claim that your spouse is at fault or not:
- Fault divorce – As the name suggests, one of the parties will be accused of being at fault. The most commonly quoted grounds for a fault divorce include: adultery, domestic violence, cruelty, abandonment, drug or alcohol addiction, incarceration and the inability to engage in sexual relations. Whichever fault is selected, you will have to prove to a judge that your spouse is guilty of this behavior. Where both parties claim that the other is at fault, the judge will decide at a hearing which spouse is the least to blame and grant that person the divorce.
- No-fault divorce – A no-fault divorce allows you to select a ground for divorce without having to prove that your spouse did anything wrong. Common grounds for a no-fault divorce include: irreconcilable differences, irretrievable breakdown of the marriage, and loss of affection. If you are seeking a no-fault divorce, your state may require you to be living apart from your spouse for a certain length of time before you can initiate the procedure. Because of the wish to avoid this imposed waiting period, many spouses will opt to file for a fault divorce instead.