The words “till death do us part” are still a part of the traditional wedding vows that many people say when they get married. But fortunately for everybody, leaving an unhappy marriage doesn’t actually require death, just legal action. Breaking up a marriage is never easy or enjoyable, but it doesn’t have to be a tragedy. Knowing what all of your legal options are can make the process more manageable and help you make better decisions about how you should proceed. The two most common legal ways to end a marriage are with a divorce or an annulment. What’s the difference, and which one is right for your situation? Take a look at what you need to know about these two options.
A divorce is simply the legal dissolution of a marriage. It severs the legal ties that both partners have to each other and leaves them free to marry other people should they choose to. If the couple has assets that need to be divided between them, this will be done as part of the divorce proceedings. If the couple has children, custody arrangements will also be a part of the divorce proceedings. The court will also determine if either partner has obligations to the other that will go on past the time when the divorce is final, such as alimony or child support payments.
Either partner can file for divorce, with or without the other partner’s consent or knowledge. The person filing for divorce can either file for a no-fault divorce or a fault-based divorce. No-fault divorces are based on grounds like loss of affection or irreconcilable differences and place no blame on either partner for the breakdown of the marriage. It’s often less complicated to file a no-fault divorce, as there’s no need to show evidence of wrongdoing on the part of the other spouse.
A fault-based divorce, on the other hand, cites grounds for divorce such as abuse, abandonment, or adultery. There are several reasons why a partner might choose to file a fault-based divorce. Some states require a waiting period before a no-fault divorce, but the waiting period can be waived in the case of a fault-based divorce, for example. Filing a fault-based divorce might also be a helpful legal strategy if you anticipate a custody dispute or resistance to an equitable division of assets.
A divorce may also be contested or uncontested. In an uncontested divorce, both partners agree that they should be divorced and generally agree on how to split assets and custody. An uncontested divorce requires minimal legal assistance and input from the court and generally moves through the system quickly.
A contested divorce occurs either when one partner does not wish to be divorced at all, or when the couple can’t agree on major points like division of assets and child custody. Contesting a divorce will not prevent the other person from divorcing you. It may draw out the process, but if one partner is determined to get divorced, the divorce will happen eventually. Contesting a divorce is usually a legal strategy meant to pressure the other partner into negotiating more favorable terms. In many cases, couples settle on an agreement before the case works its way through court and the divorce changes from a contested divorce to an uncontested divorce. In about 5 percent of cases, the case goes all the way through the court and the judge makes the final decisions.
While less common than divorce, an annulment is another viable option for some couples who want to leave their marriage. Like a divorce, an annulment dissolves the marriage and frees both partners to marry others if they choose to. And as in a divorce, matters of child custody and asset division are sorted out during the legal process. However, there is a difference in the way that the marriage is seen after the fact. Legally, a divorce is a marriage that happened and that later ended. An annulment, however, means the marriage is treated as if it never happened. The marriage isn’t simply over, it’s legally null and void.
Another important difference between annulment and divorce is that an annulment can only be granted under very specific circumstances. There is no such thing as an annulment on the grounds of irreconcilable differences. Annulments are granted in cases where:
- One or both parties were forced or threatened into the marriage
- One or both parties were married to another person at the time of the marriage
- One partner lied or misrepresented themselves in order to trick the other into marrying them
- One or both partners were mentally ill, emotionally disturbed, or incapacitated by drugs or alcohol at the time of the marriage
- One or both partners were under the legal age to marry at the time of the marriage
- The marriage was never consummated
- The marriage was incestuous
If none of the grounds for granting an annulment are present, then you’ll have to seek a divorce instead. Even if you file for an annulment and are denied, you can still seek a divorce.
Legal annulments should not be confused with religious annulments. Some religions may require a separating couple to seek a religious annulment, but this is granted by the religious institution and not by the state, and it can’t legally dissolve a marriage. A divorce or legal annulment will still be necessary. On a related note, even if a religious institution refuses to grant an annulment, the couple can still seek a legal annulment or a divorce.
Do You Need a Divorce or an Annulment?
An annulment is somewhat less complicated than a divorce in that it wipes out the history of the marriage. However, because annulments are only granted under specific circumstances – and because the partner filing for an annulment will have to be ready to prove those circumstances – a divorce is the more accessible option for many couples.
A legal resource group like National Family Solutions can help you learn more about your options for ending a marriage and the legal steps that you’ll have to take.