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Legal Separation and Annulment as Alternative Ways to Dissolve a Marriage
When it comes to wanting to dissolve an unhappy marriage, divorce is typically the first and sometimes only option that comes to a persons mind. Divorce however, is not the only option for a couple that no longer wants to be together. There are two major options for these couples, besides divorce. Those options include legal separation and an annulment. Both options will depend on the type of marriage and the situation for the couple.
The Benefits of a Marriage
Married couples receive a lot of benefits for being married, and the government provides a lot of these benefits. One of the most commonly discussed benefits for married couples is the tax benefit. There is an unlimited marital tax deduction for married couples.[i] What this means is that one spouse can transfer money to another spouse, free from tax – no matter that amount.[ii] This has a profound affect on leaving money to your spouse after you pass away. If you leave money to your spouse in your will, the surviving spouse will not have to pay any gift taxes, and will get the money in full.[iii] For same-sex couples, prior to the legalization of their marriage, couples who had been together for 50 years could not get around that gift tax and would lose so much money from their inheritance. This was a huge issue when it came to same-sex marriages, but thankfully today it is no longer a concern. There are also a lot of benefits to filing taxes together jointly with your spouse.[iv] This could mean more deductions and more money in your pocket.
Another area that is a huge benefit for married couples is the legal decision making benefit. This is especially crucial when a spouse is in the hospital. Depending on their status, if the person is injured badly enough a hospital may only allow relatives to visit the person. This means if you are just a girlfriend or even a fiancé, you may not have the ability to visit them – let alone help make decisions for them. If the person is in a vegetative state and you have spoken about end of life decisions, unless you are a spouse, the only person helping with those decisions will be a close relative, regardless of how long you have been in a relationship with that person.[v]
Now, legal separation is a way for a married couple to continue to reap the benefits of being married without living together.[vi] It is true that plenty of married couples live separately but remain married, but a legal separation takes the relationship a set further. Parties who legally separate may petition the court to make decisions about property division, spousal support – like alimony, child support, and child custody.[vii] The married couple basically goes through a divorce proceeding but remains legally married. This allows the couple to live separate lives and have all the marital responsibilities divided by the court rather than the couple hashing out their differences independently.
It may seem silly to remain married even though every other aspect of their marriage is handled like a divorce, but there are a lot of benefits to a legal separation. First of all, the couple keeps all of the legal benefits of being married, without needing to actually deal with one another on a lot of levels. If the court has already decided how finances will work and who has the children on weekends, then the couple no longer has to deal with that – but they can steal receive tax benefits from the government. It may make more financial sense for a couple to remain married to receive more compensation from the government, which in turn better provides for their children or even their jointly owned business. The couple will also still have legal decision-making power – unless otherwise decided, and that may be something that the couple still wants. Even though many states allow for an individual to have a non-spouse make health care decisions for them, depending on the family, this may still be a fight for who will actually make the decision. Remaining married will allow the spouses to continue making those decisions, which for some is a great benefit.
There are other reasons why a couple may want to remain legally married but go through a legal separation. There are many religions that do not permit divorce, such as Catholicism and many Eastern religions like Jainism, Sikhism, and Hinduism.[viii] For this reason, couples who are of that faith do not have the option of divorce but may still want to live their life without their spouse. Legal separation is a win-win scenario for those individuals.
Another way to dissolve a marriage is through an annulment. An annulment is similar to a divorce because both dissolve the marriage, but with an annulment, the court treats the marriage as if it never happened.[ix] If the marriage qualifies for an annulment, it can avoid the stigma attached that divorce carries. There are two types of annulments, civil annulments and religious annulments.[x] The state government will grant the civil annulment after a court proceeding.[xi] The church will grant a religious annulment after the appropriate proceeding.[xii]
Typically an annulment is granted pretty quickly into the marriage. The grounds for an annulment are normally discovered pretty early on and as such, the annulment can take place early on as well. For this reason, there is no need for the court to divide up property or award alimony.[xiii] Length of marriage is a key component to determining alimony, so typically a marriage that ends pretty quickly after it was entered into will likely not result in an alimony award. It is possible for a long term marriage to receive an annulment, but that will depend on the laws of the state.
Now, because an annulment treats a marriage as if it never happened, there must be a good reason for why an annulment should be granted.[xiv] After all, a marriage is just a legally binding contract and legally binding contracts are not voided or voidable for just any reason. For an annulment, if one of the following grounds is met, an annulment will likely be granted: fraud or misrepresentation, concealment, misunderstanding, impotency or incest, or lack of consent.[xv]
Fraud or Misrepresentation
Fraud or misrepresentation will occur, and be valid grounds for an annulment, if one spouse has lied about something substantial.[xvi] Lying about losing your hair may not be sufficient, but lying about your ability to have children certainly is.[xvii] Also, marrying someone just to obtain citizenship to the United States is grounds for fraud.[xviii] It is also grounds for an annulment if one person lies about their age and makes the claim that they are old enough to consent to a marriage.[xix]
Concealment can be used as grounds for an annulment if one spouse hides a major fact about himself or herself.[xx] This could include one spouse lying about a huge drug or alcohol abuse problem, massive financial debt, felony convictions, impotency, sexually transmitted diseases, or even just the fact that one spouse has children- even if they are estranged.[xxi] This list is not exhaustive of the types of information that a spouse could conceal and create grounds for an annulment for the other spouse.
This is a much lesser version of concealment. The two spouses may have no discussed the future of children with one another, and have learned that one spouse wants children while the other does not. If this was not an active concealment by either spouse, the court may grant an annulment for the couple based off of this misunderstanding.
Impotency or Incest
If one spouse is impotent, the other spouse will have grounds for an annulment.[xxii] The spouse seeking an annulment must have not known about the impotency prior to the marriage though. As far as incest, if the two spouses are too close in familial relation to marry, they will also have grounds for a divorce.[xxiii] This could include half siblings, first cousins, parents, grandchildren, aunts, and uncles. It is not always the case that a couple enters into a marriage with knowledge that they are related – they may not realize the relation until after the marriage has been entered into that they are actually related. For these cases, the court will grant a civil annulment for the couple.
Lack of Consent
In order for a marriage to be properly entered into, because remember – a marriage is a legally binding contract, both parties to the marriage must have the mental capacity to consent and they must consent voluntarily to the marriage.[xxiv] If one party was forced or threatened into the marriage, the marriage can be legally annulled. Also, if one party is too intoxicated to enter into the marriage, the marriage can be annulled. The same goes for an individual who is too mentally disabled or insane, those individuals are unable to enter into a marriage in many cases.
The grounds for obtaining a religious annulment are different from a civil annulment, but both have the same effect on the marriage. Both types of annulments will treat the marriage as if it never existed.[xxv] The grounds for a religious annulment in the Catholic Church include that the marriage was lacking in: openness and honesty, maturity, voluntarily entering into the marriage, appropriate motivation, emotional stability, and capacity to establish a loving marital community. For cases involved with the Catholic Church, if the couple meets the grounds for a religious annulment the couple can marry again in view of the religion.
Unfortunately, not all marriages are meant to last a lifetime for the spouses and need to come to an end. While divorce is the most common way to dissolve a marriage, there are other options available for couples as well. These options include legal separation and an annulment. Based off the circumstances of the marriage, either option may be better for that couple than a divorce.
[i] See Ivy Jacobson 13 Legal Benefits of Marriage The Knot (Accessed July 15, 2016) https://www.theknot.com/content/benefits-of-marriage
[vi] See Nolo’s Plain English Dictionary NOLO Legal Encyclopedia (Accessed July 27, 2016) https://www.nolo.com/dictionary/legal-separation-term.html
[viii] See What Religions Do Not Allow You to Divorce? eHow (Accessed July 30th 2016) http://www.ehow.com/info_8386017_religions-do-not-allow-divorce.html
[ix] See Annulment vs. Divorce NOLO Legal Encyclopedia (Accessed July 30, 2016) http://www.nolo.com/legal-encyclopedia/annulment-vs-divorce-30234.html
[xiv] See How Marriage Annulments Differ from Divorces and the Grounds for Obtaining a Marriage Annulment Family FindLaw (Accessed July 30, 2016) http://family.findlaw.com/divorce/how-marriage-annulments-differ-from-divorces-and-the-grounds-for.html
[xxii] See How Marriage Annulments Differ from Divorces and the Grounds for Obtaining a Marriage Annulment Family FindLaw (Accessed July 30, 2016) http://family.findlaw.com/divorce/how-marriage-annulments-differ-from-divorces-and-the-grounds-for.html