Divorce vs. annulment vs separation: What is the diff. between a divorce, an annulment and a separation?


There are fundamental differences in the law between a divorce, an annulment and a separation. Each is a unique legal maneuver not to be confused with the other as there are different legal consequences for each one.

A divorce
A divorce is when a marital contract is terminated by legal means/proceedings. It is recognizing that the two parties had entered into a legal marital union under their state’s laws and that for some reason (using a particular “ground” as allowed under that State’s domestic relations laws) they decided either bilaterally or unilaterally that the contract should be dissolved. Each party is entitled to equitable distribution of the marital assets and if there are children, the custody of the children would be determined using the “best interest of the child” test. Parties usually would not have a right to be covered under each other’s insurance after a divorce.
An annulment
An annulment is not a contract maneuver in a technical sense the way a divorce is. An annulment is saying that from the get go, there was no contract because for some reason, the parties were legally forbidden to enter into that contract. So for example, the marriage between members of the same family who are blood relatives such as fathers/daughters, brother/sisters, aunt/nephew are legally forbidden and they cannot legally enter into a marital contract. Such a marriage is void on its face and they don’t need to go to court to end it if they don’t want. Other types of “marriages” are voidable and may be annulled but the parties must go to court and prove that the marriage should not and did not legally happen. An example is if there was fraud at the time the “marriage” occurred. So for example, if a man tells a woman he wants to have children and she marries him on that pretense and he then tells her after he never wanted children, that is a voidable marriage that can be annulled on the basis of fraud. There are many other types of void and voidable marriages. Parties would not be entitled to inherit from each other. Parties could still be entitled to spousal support and equitable distribution under this scheme, however, depending on the circumstances.
A separation
A separation is neither a divorce nor an annulment. The parties must have a written agreement to live separate and apart but they are not “divorced.” They can remain separated for their entire lives even if that is 50 years. Just because parties live apart does not make them legally separated, however. There must be a written agreement, or a court judgment of separation for it to count. Depending on the terms of the agreement, the parties would either still have inheritance rights or not, depending on the terms of their separation contract. Usually, with separation, there is no equitable distribution, since equitable distribution happens upon a divorce or annulment. Parties could still be covered under each other’s health insurance

  Copyright secured by Digiprove © 2010