January is a peak time for deciding it’s time to end a marriage. Most people will wind up getting divorced, but there are other options such as legal separation and annulment.
What’s the difference? And which one is right for you?
This article will explain the terms and help you consider the right choice for your situation.
First off, both divorce and annulment result in the dissolution of a marriage. Legal separation does not. Here are some definitions (loosely adapted from dictionary.com and several legal websites):
- Divorce: a judicial declaration dissolving a marriage and ending the legal relationship of the parties for all purposes. The official term in most states is “decree of dissolution of marriage.”
- Annulment: the act of making void or null; abolishing; canceling; invalidating, especially the formal declaration that voids or abolishes a marriage. The key difference between an annulment and a divorce is that the annulment makes it as if the marriage had never occurred. (Note: this definition refers to a legal annulment; there are also religious annulments which are discussed later in this article.)
- Legal Separation: a judicial declaration addressing all the same terms as a divorce decree, and declaring the married parties to be financially and legally independent, except that the individuals are still married. This has some advantages, such as inheritance rights and Social Security claims, but neither party is free to remarry unless the decree of legal separation is converted into a divorce decree.
Each state has specific laws governing all of these ways to end a marriage, so you’ll need to consult an attorney or research your own state’s requirements as you move forward in the process of dissolving your marriage (or respond to actions your spouse has initiated). Use this information as an overview to guide you on the way.
Divorce is the norm for most married couples. DivorcedMoms.com has many informative articles and posts about divorce in all facets, so the bulk of this article will focus on annulments and legal separations and when they might apply.
Annulments comes in two types: legal/civil and religious.
From a legal standpoint, you’ll need an annulment or divorce to dissolve your marriage. To be granted a legal or civil annulment, you must meet specific criteria. These typically include things like:
- One or both parties were underage.
- One of the parties hid something or lied about something crucial to the marriage, such as the ability to have children or another marriage.
- Inability to consummate the marriage.
- Unsound mind, such as being under the influence of drugs or alcohol at the time of the marriage, or being mentally incapable of making a marriage commitment.
- Force or coercion (the classic “shotgun” wedding is an example).
- Incest – where the parties are too closely related by blood to be legally eligible for marriage.
Legal (civil) annulments are most often used when the marriage was very brief such as Britney Spears’ two-day marriage to a long-time friend a few years back, which was annulled shortly after it took place. More recently Kris Humphries made news when he wanted to have his marriage to Kim Kardashian annulled on the grounds that she only married him for her reality show. (He later agreed to a divorce settlement.)
So if your marriage was very short, not consummated, or entered into under some kind of false pretenses or coercion, you have good grounds for annulment. Otherwise, you are most likely going to need a legal divorce.
Some religious traditions, most notably the Roman Catholic church, have their own annulment processes. Catholic teachings do not forbid divorce, but they do not allow for remarriage since they believe that the marriage bond is made for life. However, married parties can apply for an annulment through the church, usually after obtaining a civil divorce. The church annulment, like the civil annulment, makes it so that the marriage never occurred. That way the parties are free to marry (again) in good standing within the church.
The church has its own rules for who is eligible for a religious annulment. For Catholics, the five elements necessary for a marriage to be annulled are that the man and woman:
- be free to marry
- freely give their consent
- marry with the intent of staying married for life, as well as faithful and open to having children
- marry with good intentions for their spouse
- must be married by a church minister in front of at least two witnesses.
The annulment process can be lengthy and often involves witness testimony (written or oral) and a hearing before a church tribunal. There are no guarantees of a favorable outcome, but about 90% of all requests received religious annulments in 2012 according to the Center for Applied Research in the Apostolate at Georgetown University.
To apply for a religious annulment, you’ll need to consult with your local church to begin the process. Typically you’ll have a priest who will provide you information to get you started, and the tribunal will appoint a Defender of the Bond who will defend the marriage bond to the tribunal (the “judges” who will decide whether or not to grant the annulment).
If you’re not quite ready for divorce, or if you have special circumstances that warrant maintaining the marriage temporarily (or longer), you may want to consider a legal separation. You’ll still want to consult an attorney (or get specific legal advice for your state) to put the legal separation in place. The legal separation covers all the same areas as a divorce settlement – finances, property division, child custody (if applicable), etc.
Some couples try a legal separation initially, with the intention that they may get back together. One attorney told me that more than 90% of the time, this doesn’t work and the couples wind up getting divorced. But it’s worth a try if there is some hope of salvaging the marriage down the road while protecting your interests in the interim.
Other reasons for legal separation may include personal or religious grounds, inheriting joint property if one spouse is ill, remaining eligible for spousal benefits under Social Security, and the like.
If none of the situations described above apply, then divorce is the route to take. You may also consider a religious annulment during or after your divorce proceedings if that is important to you and you meet the church’s requirements.
Regardless of which route you take, if moving on from a marriage that isn’t working for both parties is in your future, I offer the words a priest once said to me when discussing annulment:
“Sometimes people just make bad marriages. That doesn’t mean they didn’t exist. It just means we pick up the pieces and grow from here.”
Be gentle with yourself in the process, whether it’s divorce, annulment or legal separation, as you move forward in creating a better life for yourself and those you love.
How do you plan on beginning the divorce process?
- The Divorce Dilemma: Does This Sound Familiar?
- Financial & Legal Things To Consider Before Filing For Divorce
- Is Divorce Mediation The Right Choice For You?
- Which is Right For You, Legal Separation Or Divorce?