Marriages are dissolved in several ways. The most common way for a couple to end their marriage is divorce, a statutory termination of the marital state. Dissolution of Marriage is the phrase that many jurisdictions use to formally define the word divorce. Annulment is possible if the marriage was never legal to begin with. For example, if one of the parties was too young under the law to marry, the marriage can be annulled. A legal separation is like a divorce, but a divorce decree is not entered. A Decree of Legal Separation does all of the same things as a Final Divorce Decree--for example, it can divide property and award custody of children. People may choose this option for religious reasons or for more practical reasons, like a need to remain on a health care policy.
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Legal separation is also referred to as separate maintenance. Legal separation is a status that allows the parties to live separate and apart, but unable to remarry. Although legal separations are not common today, they are allowed in most jurisdictions and may be chosen for reasons such as religious beliefs, medical insurance coverage, financial benefits and, trial separation. Similar to a dissolution action, specific grounds must be alleged and proven in an action for legal separation. Courts may order one spouse to provide financial support in the form of payments. Courts can order noncustodial spouse to pay child support. Courts may also order an equitable distribution of marital property. After a legal separation, both parties retain marital rights and obligations that they would not retain if divorced. Legally separated couples still have rights to medical insurance coverage, pension plans and the spousal share of an estate. However, legally separated parties are limited in that they are not free to remarry.
The religion of one or both of the spouses may object to divorce.
Since most insurance coverage ends upon divorce, some couples may consider a legal separation if the insurance policy allows continued coverage in cases of legal separation.
A couple may want to delay obtaining a formal divorce in order to preserve their legal rights. For example, couples have Social Security and pension rights, and after a couple is married for ten years, they qualify for a divorced spouse benefit under federal Social Security law.
A couple may want to enter in a trial separation. Some couples view the legal separation as a cooling-off period with the possibility of reconciliation. A legal separation may also be a solution if the couple wants a formal agreement on custody issues, etc. A legal separation can be converted into a dissolution if the parties wish to later change their marital status.
Divorce is a drastic measure. Divorce is the complete legal severance of the marital relationship. The state must legally dissolve the union, whether it is marital or common law. State intervention is required to: Protect the rights of the parties; Provide a forum where grievances can be aired instead of encouraging parties to resort to self-help; and Formally end a legal status that carries many rights and obligations. There are many major issues that must be decided by mutual agreement, with assistance from attorneys or mediators, or by court order.
There are some alternatives to avoiding a long and drawn out litigation process. These are options that couples have to help avoid litigation at all, or at least help shorten the litigation process.
When the alternatives do not work, the end result is a dissolution action.
Initial Pleadings and Responsive Pleadings
An annulment is a court order terminating a marriage by declaring it void from its inception. The legal theory of an annulment is much different from a divorce action. A divorce action is filed to end a valid existing marriage. An annulment proceeding is begun in order to obtain a judicial decision that a valid marriage does not exist and never existed. An annulment may be granted even if the parties obtained a marriage license and held a ceremony, if the parties can prove that an impediment existed at the time of the marriage. As in a divorce, the party requesting the annulment must introduce evidence of facts or circumstances to prove that the marriage was not valid. Common grounds for annulment include incapacity due to minority age, mental incompetence, one of the parties is already legally married, inability of one party to consummate the marriage, and fraud. Only parties to the marriage may seek an annulment, unless one party is a minority.
Civil Annulment: Obtained through a court order; Laws vary by state. The moving party must prove that a defect existed at the time of the marriage that rendered it invalid. The grounds for an annulment may be difficult to prove. Annulments are not granted simply because a marriage is short or the parties feel like the marriage was a mistake. Religious Annulment: Obtained through a religious body; Separate from a civil annulment. Some religions, such as Roman Catholic, require spouses who wish to divorce to obtain a religious annulment first. A religious annulment does not affect legal issues. Legal matters must still be dealt with through a divorce or civil annulment.
Grounds for Annulment Void Marriage: Invalid at the time of its creation. A court will always declare a marriage null and void if one of the parties is already legally married to someone else. Voidable Marriage: Invalid at its inception but remains in effect unless the court terminates it. The petitioning party must prove that a legal impediment existed at the time the marriage took place. A court may be required to declare a marriage “voidable” if the marriage will become valid. If the action is based on legal incapacity due to minority age and both parties are now of legal age, the court may allow the parties to void the marriage if either wishes.
An action for separate maintenance is similar to a legal separation. These actions are not very common. Spouses are not expressly authorized to live apart; however, refusal to live together is sanctioned. These actions were sometimes brought by a wife whose husband was leaving their home or country to perform military service. These actions are sometime brought before a divorce action is filed.