What Is the Legal Difference Between Annulment and Divorce?
Discussing the topic of divorce is never easy, but it is important to know the legal process of separation depending on your circumstances. Generally speaking, there are two ways to legally end a marriage — annulment, and divorce. We will look at each so that you can understand the difference and which one would apply to your situation.
What Is a Marriage Annulment
When a marriage is annulled, it is basically canceled in the eyes of the law. It is erased from a legal perspective, and it virtually declares that it never existed. The annulment states that your marriage paperwork is invalid.
The Grounds for an Annulment
Although each state has its own marriage annulment and divorce regulations, certain requirements apply nationwide. Either party can initiate a marriage annulment, but that person must be able to prove there are legal grounds for annulment. Common grounds for annulment include:
- Underage Marriage— when a spouse was too young to enter into marriage, and there was no court approval or parental consent
- Bigamy — when a spouse was already married to another person at the time of the marriage
- Marriage prohibited by law— in case of marriage between people with familial relationships – the court considers it incestuous and is ground for annulment
- Forced consent— one of the spouses was threatened or forced into marriage and only agreed to get married under duress
- Fraud — a spouse agreed to enter into marriage because of the lies of the other party
- Inability to consummate the marriage— you can file for annulment if your spouse was physically incapable of sexual relations (or was impotent) during the marriage
- Mental incapacity— if either spouse was under the influence of drugs or alcohol when getting married or during the marriage and was unable to make informed consent, there is sufficient ground for annulment
- Mental illness— if either spouse was emotionally disturbed or mentally ill at the time of marriage
What is the Legal Definition of Divorce
Divorce is the legal dissolution of a marriage that ends a valid marriage and returns the single status to both parties with the ability to remarry.
When it comes to divorce, each state can have either a fault divorce or a no-fault divorce.
What is a fault divorce?
A fault divorce is granted when a spouse can prove adequate grounds for legal separation. These grounds often include proving adultery, physical or emotional abuse, desertion, drug or alcohol addiction, gambling addiction, and conviction of a crime, among other reasons.
What is no-fault divorce?
No-fault divorce allows you to dissolve the marriage without naming one of the spouses as the “guilty party.” In this case, both sides accept the blame for the marital breakup. When there is no guilty party, some states may require you to wait a certain period of time until the divorce is granted. That is why some people decide to pursue a fault divorce to expedite the legal process.
The Procedure to Obtain a Divorce vs. an Annulment
The procedures of obtaining a divorce or an annulment are pretty similar. One spouse has to file a petition with the court. The court will then appoint a hearing, and the judge will issue an order.
Regardless of your state of residence, the process of divorce starts with a divorce petition. If you initiate the divorce, it falls on you or your legal counsel to file the petition with the county where you reside. While it is not mandatory to hire a marriage attorney, it is advised, especially when children are involved. A legal expert can help navigate you through the complexities of child support, custody, and assets division.
After you have filed the divorce petition, you need to serve the divorce papers to the other spouse. This stage is called “service of process.”
Understanding the intricacies of family law, fault divorce, and no-fault divorce are all crucial aspects of legal separation. To ensure your interests are protected, it is best to work with an attorney. Legal Chiefs has a wide network of attorneys to choose from!
Family Law FAQ
With major life events and changes, it’s always a good idea to consult a lawyer. Getting through a divorce may also be a very stressful project and you need someone experienced to protect your rights as well as protect your children’s rights (if you have any). Here at Legal Chiefs, we can get you in touch with someone current with the laws in your state concerning divorce, marriage, marital property, child custody, visitation, and family support
The grounds for divorce may be based on no-fault or fault depending on the state, but no-fault divorce is available in some form in all 50 states. Most of the states also have fault-based grounds as an additional option.
A no-fault divorce is one in which neither of the partners blames the other for the breakdown of the marriage and common bases for no-fault divorce may be “incompatibility,” “irretrievable breakdown,” or “irreconcilable differences.” Suppose the parties have lived separately for a certain period with the intent that the separation is permanent. In that case, it is another common basis of no-fault, but once again, the specifics vary from state to state.
With a fault-based divorce, the list of grounds may include physical cruelty, mental cruelty, adultery, attempted murder, habitual drunkenness, desertion, use of addictive drugs, impotence, insanity, and infection of one’s spouse with venereal disease.
While every divorce starts with a bit of bitterness, statistics show that most of the cases are settled without the need for a judge to decide on a property or other issues. In most cases, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement”, a contract between the married couple that divides property and debts and resolves other divorce issues. However, having a family law attorney is still recommended, and in case the division of property cannot be settled, then the court must make the determination. Once again, the specifics vary from state to state, but many states allow both parties to keep their separate and nonmarital properties as a starting point.
Another thing to know about assets and divorce is how dividing marital or community property works. Again, each state has its specifics, and some states are community property states by definition. For example, the state of California divides equality marital property unless a premarital agreement specifies otherwise. However, most states apply the “equitable distribution” concept where the court divides the marital property as it thinks fair. This doesn’t necessarily mean a 50-50 division. The common factors considered by the court include the amount of nonmarital property, each spouse’s earning power, waste and dissipation, fault, services as a homemaker, duration of the marriage, age, health, and others.
When parents can’t agree on custody of their child/children, the court will decide custody based on “the best interests of the child.” There are many factors involved, not one of which is considered the most important.
Joint custody has two parts - joint legal custody and joint physical custody, and a joint custody order can have both or one of the parts.
● Joint legal custody refers to both parents sharing the significant decisions regarding their child/children, which usually include school, health care, and religious training. Other decisions may include summer camps, extracurricular activities, the age for dating or getting a job, discipline methods, etc.
● Joint physical custody refers to the time spent with each parent. The amount of time is flexible and can range from dividing the time between the two parents’ equality to visits every other weekend, and so on. The residing addresses of the parents are often considered, and living close is important, especially in situations where the time spent with both parents will be divided equally.
Since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. However, granting such rights is not automatic, and in most cases, grandparents merely have grounds for asking for a visitation order. Most commonly, a grandparent may petition for visitation after the death of a parent or upon divorce of the parents. Some states allow petitions when the child has previously lived with the grandparent, a child is born out of wedlock, and when a parent is incarcerated.
Unlike most legal matters where specifics depend on the state, talking to a judge separately is prohibited in all 50 states. All communication with the judge takes place on the record during a hearing. This is a way of ensuring fairness to both sides, and just as you would not want the judge to talk to the other party without you being present, the judge is not allowed to talk to you without the other party being present.
Only before a judge has done anything on the case, each party files one “peremptory challenge.” It costs $450, and there is no way to waive this fee. A new judge will be randomly assigned to your case, meaning you cannot pick the new judge. Be careful with the strict timing requirements for filing a peremptory challenge, as the money spent on a challenge is not refunded.
