Barbara Sadler: What Is The Difference Between Annulment and Legal Separation?

A legal separation does not officially end a marriage. The parties are still legally married and cannot remarry or enter into domestic partnerships with others. Legal separation is a reasonable choice for couples who aren’t ready to get a divorce but who want to live separately and decide on issues such as custody and asset division. Some couples prefer legal separation to divorce if potential reconciliation could be in the future. Others avoid divorce for religious reasons or to retain benefits such as health insurance. During legal separation, you can ask a judge to decide on all the same issues as in a divorce, but you will still be legally married.

Different Types of Legal Separation

If two people are married, they can be considered separated. However, there is much confusion that is associated with this simple word, “separated.” Much of this confusion is due to the fact that there are four different types of separation:
• Trial separation: If a married couple decides to live separately (even if they are living in the same house) to see if they want to continue living separately, this is called a trial separation. If the couple decides not to reconcile, the assets they accumulate during the trial separation, as well as the debts they incur, are normally considered as jointly owned. Trial separations are generally not recognized by the law.
• Living apart: If two spouses no longer live in the same residence, they are living apart. Depending upon the state, living apart could impact your property rights. For states that consider living apart as the first part of a divorce, assets accrued and debts incurred by the individuals during this living apart phase could be classified as separate property and not marital property. However, other states still consider this property to be joint, marital property until a complaint seeking divorce is filed.
• Permanent separation: If a couple finally decides to split up for good, this is often called a permanent separation. In most states, all property received and most debts incurred during a permanent separation are considered the separate property of the spouse that is responsible for the property or debt. If debt is incurred for certain necessities, like providing for children, during a permanent separation, the debt will still be considered as joint property. Only if one spouse takes the other to court for support payments or custody will a separation be considered legal.

• Legal separation: The step beyond a permanent separation is legal separation. This occurs when a couple splits up and seeks a court issued judgment for a division of property, child custody, support payments, visitation rights, but not for divorce. If payments are ordered in a legal separation, either for child support or for living expenses, it is generally called separate maintenance. Some states allow separate maintenance to be ordered even if litigation is still pending. Separate maintenance is often the basis for future alimony awards after divorce proceedings.

Annulment In Utah

A legal annulment does not end a valid marriage, but rather declares that the marriage never existed in the first place. An annulment may be appropriate if something made the marriage invalid or never officially legal. For example, if one spouse was already married at the time of the second alleged marriage. The Utah courts may declare a marriage void and grant an annulment request if the spouses are under the age of 16 and lack parental consent, either party was under the influence at the time of marriage, either party was incurably impotent, or if either party entered into the marriage due to coercion or fraud. A conversation with you, your spouse, and a legal professional can help you choose between these three options. You may think you want a divorce to finalize the dissolution of marriage, when in reality a legal separation or annulment would be a better choice for your situation. Speak with a family law attorney for legal counsel before making your choice.

A legal separation is almost like a trial divorce. While it doesn’t permanently end the bond, it does allow you to live separately and divide money, property, and child custody. You aren’t, however, legally allowed to remarry or enter into a domestic partnership. If you’re legally separated, you have the option to amend the order in the future and get a legal divorce. Many couples opt to get a legal separation because their religion prevents them from getting a divorce. Unlike a divorce, which entails a six-month waiting period, legal separation is effective immediately. Annulments are particularly interesting because they’re filed on the grounds that the marriage wasn’t legally valid. There are several reasons where this could be the case:

• An incestuous marriage will never be considered valid.
• One partner was already married to someone else.
• One partner was under the age of 18 when married.
• Either partner was considered of “unsound mind.” This means one party didn’t understand the legal repercussions of marriage.
• A spouse was tricked into marriage by fraud, threat, or force.
• One spouse was incapable of consummating the marriage, which means he or she was physically incapacitated at the time.
Unlike divorce and separation, annulment requires you to prove one of these situations. Annulments are much more difficult to illustrate, and they require an experienced divorce attorney. Furthermore, there are strict statutes of limitations on annulments, too. Generally, it’s within four years of the marriage. An attorney can walk you through the specifics regarding your situation. If you’re granted an annulment, you can remarry or enter a domestic partnership, and you may divide custody and visitation rights. Unlike divorces and separations, annulments don’t usually allow you to divide property and money. Because you claim the marriage was never valid, you also give up your rights to shared property. An annulment does have residency requirements, though, so it may be right for you if you have been a resident of Utah for less than three months.

Divorces and annulments both have the same effect–they dissolve the marriage. However, they differ in how they treat the marriage. When people get a divorce, they’re still recognized as having been married previously. An annulment, on the other hand, treats the marriage as though it never existed — and in fact, the key distinction of an annulment is that the union wasn’t legal or legitimate to begin with. To help understand the difference between annulment and divorce, let’s look at two hypothetical situations. Let’s say, for example, Couple a discovered they no longer saw eye to eye after five years of marriage and decided they needed to call it quits. Depending on the marital property laws of their state, their combined assets and liabilities will be divided either equally or equitably; one spouse may pay alimony to the other; and child custody, support, and visitation will be determined. If the couple can’t agree on the terms of the divorce, it may be argued in court and decided by a judge. The union was valid when they obtained their marriage license, but now they wish to terminate the marriage. Meanwhile, Couple B settled down together and had what you would call a happy marriage. However, the wife discovered after a couple of years from a demand letter seeking support payments that her husband actually left his first family one year before she met him. She had no idea he was previously married, or that he had children. Since he misrepresented and/or concealed important information, she filed a petition for annulment in the court with evidence of his concealment or lie. The court agreed, declared the marriage null and void, and the two parties went their separate ways as if they were never married in the first place. If Couple B had children together, then the courts would still go through the child custody, visitation, and support process. The court would probably be more sympathetic to the mother in this scenario, given the father’s misrepresentation, as long as the focus is on the best interests of the children.
Civil Annulments
Annulments are a form of relief for people who were placed in situations in which they never should have been married. Because civil annulments treat the marriage as though it never existed, a person must have a pretty good reason to obtain one. Typically, one of the following requirements (or legal grounds) must be met to obtain an annulment vs. a divorce:
• Fraud or Misrepresentation – One of the spouses has lied about something, such as age or already being married.
• Concealment – One of the spouses hid a major fact, such as a felony conviction.
• Misunderstanding – For instance, one of the spouses does not want to have children.
• Impotency or Incest – One of the spouses is incurably impotent (and the other spouse didn’t know), or the spouses are too close in familial relation to marry.
• Lack of Consent – One party lacked mental capacity to consent or was forced into marriage.
These things are usually discovered early on in the marriage, so there typically is no need to divide property or decide on issues regarding children. However, most state laws do govern how to decide such issues should an annulment of a long-term marriage occurs. Check with your state’s laws regarding property division and child custody, visitation, and support. If you do have children from an annulled marriage, these children are not considered illegitimate.
Religious Annulments
The grounds for obtaining a religious annulment are different than those for a court-granted annulment. However, both types of annulments have essentially the same effect–the marriage is treated as though it never existed. In the Catholic Church, a diocesan tribunal, rather than a court of law, decides whether the marriage bond was less than a covenant for life, because it was lacking in some way from the very beginning. Either or both parties may obtain an annulment if they can show adequate grounds, such as a lack of maturity, honesty, or emotional stability. If the tribunal grants the annulment, then both parties may remarry in the Catholic Church. Like in the court of law, the legitimacy of the children of an annulled marriage is not questioned.

How to Be Eligible for an Annulment

While a divorce terminates a legal marriage, an annulment means that the marriage never existed legally. To qualify for an annulment, a marriage must be legally void or voidable. Void means that it is not valid, while voidable means that a court can declare it to be invalid if it is challenged. To be eligible for an annulment you must be able to prove one of the specific grounds to establish that your marriage is void or voidable. Otherwise, eligibility for an annulment is simple. However, many states require strict proof to declare an annulment.
• Meet one of the legal grounds for annulment. Although the grounds vary from state to state, several reasons for annulment are common to all states. If a spouse did not have the legal capacity or the legal intent to enter into the marriage, an annulment is possible. Some common reasons that a spouse does not have the legal capacity to marry include a preexisting marriage, mental incapacity or being underage. Another reason is consanguinity, or a marriage between close relatives, which is illegal.
• Determine if you were married without the proper intent, as an alternative to lacking the capacity to marry. A person who marries under fraudulent circumstances or under duress lacks the proper intent to enter into a marriage. For example, a person with false identity commits fraud if he marries someone who has no knowledge of his true identity. Another example is a sham marriage, in which the parties marry to deceive a government or corporate entity. A marriage that has not been consummated by physical relations can be annulled in some states.
• Be the innocent spouse in your marriage in order to file for an annulment. In some states and under certain circumstances, the wrongdoer in a marriage cannot be the plaintiff in a lawsuit for annulment. For example, if a man forced you to marry him under duress, he cannot file for annulment himself. Or, if you were tricked into marrying someone but remained married after you learned the truth, you cannot file for an annulment in many states because your actions retroactively approved the marriage agreement.
• Meet the residency requirements for the county and state where you seek an annulment. Usually, you or your spouse must have lived in the county for at least 90 days prior to filing for an annulment. Many states require a much longer period of residency. A lawyer or other officer of the court can tell you if you meet the residency requirements.
• Meet your state’s statute of limitations for annulment. For example, you might have to file within 90 days of the wedding ceremony, depending on the reason you are filing. You can find out if your state requires you to file within a certain time frame by consulting a lawyer, or you can look up this information in your state’s code of laws. You can usually find the state code online by conducting an Internet search or in a public library.
Though no one ever plans on ending a marriage, the truth of the matter is that many do end in divorce. However, there are other options which can make this time even more confusing. Some people prefer to stay married but they legally separate while others want an annulment.

Annulment and Legal Separation Lawyer Free Consultation

If you’re not sure whether or not you want an annulment or a legal separation in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.