When a couple has decided they no longer want to be married, why would they opt for an annulment or legal separation over divorce? Because the decision to end a marriage is a big one and it’s not easy…it's understandable that some couples may choose not to divorce — at least not right away — for a variety of financial, emotional or religious reasons.
Getting legally separated as an option
Couples who aren't ready to take the permanent step of divorce have the option to separate. However, how a couple separates can affect property ownership. There are typically four different scenarios for separation:
- Trial separation is when a couple lives apart temporarily to decide whether they want to stay married. This trial period has no real legal effect on the assets and debts they accumulate while apart — everything is considered marital property because the couple is still legally married.
- Living apart. In some states, when couples separate without plans to get back together, their property rights change. The property and debt they collect while living apart are considered separate.
- Permanent separation is when a couple decides to split up for good. Most states view all property and debts accumulated after a permanent separation as separate property. However, debts that happen after separation and before divorce can be joint debts if they go toward basic necessities such as childcare.
- A legal separation happens when both parties separate and the court rules on the division of property, alimony, child support, custody and visitation — but doesn't grant a divorce.
This isn't very common, but there are situations where spouses don't want to divorce for religious, financial, or personal reasons, but do want the certainty of a court order that says they're separated and addresses all the same issues that would be decided in a divorce.
The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support). In some states, separate maintenance can be obtained with a motion pendente lite, or a motion "pending the litigation." Usually a lawyer files this motion. It will help set the tone for what may be awarded in a future divorce judgment.
Unraveling the mystery behind annulments
While a divorce legally declares the end of a marriage, you may be able to annul your marriage as though it never legally existed. The two types of annulments are civil annulment and religious annulment:
A civil annulment is granted by the state government in court. In most states, the grounds for annulling a marriage are pretty limited. Each state has its own terms, but they generally include:
- Underage at the time of marriage
- Prior divorce within 30 days of the marriage
- Intoxication
- Impotence
- Mental illness
- Fraud, duress or force
- Marriage occurred prior to expiration of state mandated waiting period
A religious annulment may be granted by certain religious institutions after a couple obtains a civil divorce so they can still be recognized by their faith. The United States Conference of Catholic Bishops describes an annulment as a “declaration by a Church tribunal (a Catholic church court) that a marriage thought to be valid according to Church law actually fell short of at least one of the essential elements required for a binding union.”
Check with your religious affiliation to see what qualifies as grounds for a religious annulment.
While a separation or an annulment can be a viable solution for you and your spouse to pursue, consider reaching out to a counselor who focuses on relationships or an attorney who specializes in family law to help you work through your situation.
