There are many reasons a marriage may not work out; when both parties have decided to end their marriage, it is important to take the appropriate legal steps to formally terminate the relationship. There are two ways to legally end a marriage: annulment and divorce. The purpose of this article is to distinguish the difference between the two and to fully gain an understanding on the grounds for each.
What is an Annulment?
Simply put, an annulment is a legal procedure that erases the marriage completely from a legal perspective. It declares that the marriage never technically existed and was void. Each state has its own laws regarding the grounds for marriage annulment and certain requirements apply nationwide. It is important to consult a family attorney or divorce attorney to explore your situation prior to pursuing an annulment. Some of the grounds for an annulment include:
-Bigamy – One of the parties was still legally married at the time of the ceremony
-Lack of an appropriate/legal marriage ceremony (discussed further below)
-Absence of free consent – one of the parties was forced or threatened into marriage and entered under duress. This includes underage marriage, mental incapacity, and mental illness at the time of marriage.
Benefits of An Annulment: There are several advantages to having your marriage fully voided over pursuing divorce if you qualify including but not limited to:
- No division of property or debt. Property and debts are typically assigned back to their rightful owner as they were before the marriage.
- Equal sharing of marital debt. While you are responsible for your own debt prior to the start of the marriage, an annulment would require any debts acquired during the marriage to be split equally.
- Prenup Invalidated. Because the marriage would be as if it never existed, an annulment would release you from the terms of a prenuptial agreement.
- No Legal Marriage. An annulment would declare that you were never legally married, unlike divorce which says you were married but the union was dissolved.
Note that although an annulment may be less complicated, it is not necessarily cheaper than getting a divorce.
Legal Definition of Divorce
A divorce is the legal dissolution of a marriage and ends a valid marriage returning both parties to single status with the legal ability to remarry. There are two types of divorce: fault and no-fault.
A “fault based” divorce is when one or both spouses is seeking divorce due to a wrongdoing in the marriage. An example of a fault divorce would in the event of adultery. Except in the case of covenant marriage, immediate divorce is granted upon finding the other spouse committed adultery. Note that circumstantial evidence of the adultery must be presented. Other examples of fault divorce would include abuse, protective order, and felony in which a spouse has been sentenced to death or imprisonment at hard labor. A no fault divorce is a type of divorce that does not require either spouse to prove any fault on the part of the other party.
A ”no-fault” divorce is appropriate when there are no legal grounds for a fault based divorce (explained above) and the parties live separate and apart for the requisite amount of time. If the parties share minor children, they must live separate and apart for 365 days prior to being able to get a no-fault divorce. If the parties do not share minor children, they must live separate and apart 180 days from being able to acquire a valid divorce. Parties may also proceed with a no-fault divorce even if there are allegations of legal fault. Sometimes, this route is sometimes more procedurally appealing to the parties or party requesting a divorce.
Pre-requisites of a Valid Marriage
In order to understand which option is worth pursuing, it is important to understand what legally makes a marriage valid. Below are the three elements required to a valid marriage.
Absence of Legal Impediment
These are simply grounds that prevent one of the parties from marrying the other. This includes still being legally married to another party, you are not related to the other party (even by adoption), etc. You must confirm who you are, who you are marrying, and that to your knowledge there is no legal reason why you cannot be married to each other.
A marriage must be performed by a third party officiate who is qualified by the parties to perform the marriage. Both parties must be physically present at the marriage ceremony in order for it to be considered valid. This means a ceremony where one party is absent, represented by another, or through a technological device would automatically make the marriage void.
Free Consent Expressed at Ceremony
Free consent from both parties must be given at the ceremony. Consent is not considered free for marriage when given under duress, by an underaged person, mental illness or incompetence, or under the influence of drugs or alcohol.
If any of these prerequisites are not met, the marriage is considered invalid and an annulment can be pursued to void its effects. If all requirements are met and the marriage is indeed valid, a divorce must be pursued to end the marriage. If you are seeking to end your marriage and are not sure which route you should pursue, do not hesitate to contact Latiolais Law Firm for assistance. We can discuss your situation and determine the appropriate course of action.