The Difference Between Divorce, Annulment, and Legal Separation
Many spouses who want to end their marriages wonder if divorce is the only option. Divorce is not the only way to end or resolve issues in a marriage, although, it is a very popular method of doing so. Instead of resorting to divorce right away, spouses may want to consider their options first and foremost.
For this reason, our Dutchess County divorce attorneys explain the difference between divorce, annulment, and legal separation below to give you clarity on your legal options before making a decision. If you have any questions, you know who to call.
What Is an Annulment?
An annulment establishes that your marriage is not legally valid despite it being valid when you got married. As such, an annulment declares a marriage null and void as if it never happened in the first place. Although records of the marriage and annulment remain, you and your spouse can consider your marriage to have not occurred at all. Keep in mind though, that any children you had with your spouse during the marriage remain legitimate.
To get an annulment in New York, you must choose 1 of 6 reasons, which are:
- Bigamy: One of the spouses was still married to someone else at the time of the second marriage.
- Either spouse is incurably unable to have sexual intercourse at the time of the marriage and did not know of this incapacity at the time of the marriage.
- Insanity: After marriage, either spouse becomes incurably insane for 5 years or more.
- Either spouse is unable to understand the nature, effect, and consequences of marriage because of their mental incapacity.
- Either spouse only agreed to marry as a result of force or duress by the other.
- Fraud: Either spouse obtained the other’s consent to marriage by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other spouse’s consent. The fraud concerns the marriage contract, therefore, an example of a fraudulent marriage is one that is obtained through the concealment of a material fact.
Once an annulment is achieved, you and your ex must resolve issues concerning your minor children and marital property. Despite getting your marriage annulled, you and your ex are both responsible for your minor children and should arrange custody, visitation, and support orders in court with your attorneys. Not to mention, a judge may order for marital property to be fairly distributed between both parties as well as order maintenance payments as if the annulment were a divorce. That said, you will greatly benefit from an attorney’s help because they can ensure no stone is left unturned in the annulment process.
Should I Get a Legal Separation?
A popular alternative to divorce, a legal separation essentially allows both spouses to live separately and apart without getting divorced. By creating a separation agreement, you and your spouse voluntarily agree to spend some time apart to help resolve any issues that may repair your marriage. You and your spouse may get back together at any time under a separation agreement, although, your agreement may become invalid and void if you live together with the intent to make up and get back together.
If you anticipate this to happen for you and your spouse, you may want to include a provision that asserts your separation agreement is NOT void if you and your spouse live together again. You may include a statement describing that your separation agreement is invalid and void if it is properly signed by both spouses before a public notary, however.
Another reason spouses enter into a separation agreement is that they can work out issues concerning custody, child support, visitation, property division, and spousal support on their own timelines rather than complying with strict court conferences and deadlines as they would in a divorce. This gives spouses more time and space to work out their issues slowly and over time rather than get pressured into resolving these disputes by a certain deadline.
By getting a legal separation before filing for divorce, spouses can address their issues on their terms and obtain a divorce much easier. The state of New York allows for no-fault divorces, but if you and your spouse have obtained and complied with your separation agreement for more than one year, then you can obtain a divorce for this reason alone. Typically, no-fault divorces in New York require both parties to sign a sworn statement that their marriage has been irretrievably broken for 6 months or more, but having an existing separation agreement may help expedite the divorce process.
That said, a valid separation agreement can be challenged for reasons such as:
- Lack of separate attorneys: Both you and your spouse should hire separate lawyers to enter into a separation agreement. If a single attorney represented you and your spouse, however, a court may rule the agreement unfair and unenforceable.
- Fraud: A court may not enforce a separation agreement if you and your spouse did not disclose all of your assets.
- Coercion/duress: If either spouse pressured one another to sign the separation agreement or did not give the other spouse enough time to consider the agreement, the court may not enforce it.
- Unfairness: If the separation agreement is inequitable and favors one spouse over the other by giving them little to nothing, the court me render the agreement unconscionable and unenforceable.
If these factors above do NOT affect your separation agreement, then it may be valid and enforceable by the court. If you and your spouse get divorced, your separation agreement may either be merged into the final divorce judgment or survive the divorce judgment.
When a separation agreement becomes a “merger,” it no longer exists as a separate and enforceable contract but instead can become modified later on. On the other hand, a separation agreement that survives the divorce judgment remains valid and enforceable as well as separate from the terms of the divorce. As such, it can be enforced separately. However, provisions in the separation agreement concerning child support or spousal support (also called “maintenance”) cannot be modified unless the party seeking a modification proves extreme hardship.
What Is a Divorce?
A divorce is the legal ending of a marriage. To get a divorce, you need to show that you and/or your spouse continuously resided in New York for one year. The Empire State allows for both fault-based and no-fault divorces. If you want to file for divorce on no-fault grounds, you must show that there was an irretrievable breakdown in the marriage for at least 6 months or that you both lived apart under a valid and enforceable separation agreement. If you want a divorce on fault-based grounds in New York, you must cite one of the following reasons:
- Cruel and inhuman treatment
- Confinement in prison for 3 or more consecutive years
A divorce can be contested or uncontested. A contested divorce occurs when either spouse does not want a divorce, disagrees on the grounds for the divorce, or disagrees about what will happen to the children, money, and assets after the divorce. Contested divorces are notoriously long, draining, and complex, so it is best to hire a lawyer for this type of divorce.
In contrast, an uncontested divorce occurs when both spouses agree on all aspects of the divorce. If you both want to get a divorce and agree on what will happen to the kids, finances, and property post-divorce, then your divorce is considered “uncontested.” Retaining an attorney is strongly encouraged in uncontested divorces as well because it is important to understand your legal rights, the best possible decisions to make for you and your children, and the short-term and long-term impacts of your divorce, among other significant reasons.
With this in mind, you should get in touch with our Dutchess County divorce lawyers online or at (845) 605-4330 to learn more about annulments, legal separations, and divorces in New York. We can clarify any confusions you may have, help you determine your best course of action, and champion your best interests every step of the way. We look forward to hearing from you!