What’s the Difference Between Annulment, Legal Separation and Divorce?

What’s the Difference Between Annulment, Legal Separation and Divorce?

Most people get married with the hope that it will last a lifetime, but about half of all marriages will not. Instead they will end in divorce, annulment or legal separation. Of these three outcomes, divorce is the most well-known but the other two may be more appropriate depending on the couple’s individual circumstances. Here is a summary of the basic differences between these processes.

Divorce is the legal termination of a marriage and includes a formal resolution of monetary and parenting issues. New York is a no-fault divorce state, so you can get divorced even if your spouse doesn’t want to. You can also get divorced without needing to prove adultery or any other fault on your spouse’s part. You only have to claim that your marriage is irretrievably broken. You or your spouse must continuously reside in New York for at least one year before filing for divorce.

Annulment is a legal declaration that your marriage was invalid from the start. New York courts will grant an annulment based on these grounds:

  • One spouse was still married to someone else at the time of the marriage (known as bigamy).
  • One or both spouses were under 18 years old at the time of the marriage.
  • Either spouse was physically unable to have sexual intercourse as of the date of the marriage.
  • Consent to the marriage was obtained by force, duress or fraud (such as a false claim of being pregnant).
  • Either spouse lacked the mental capacity required by law to consent to the marriage.

In addition, an annulment can be granted if either spouse becomes incurably mentally ill for five years or longer. Contrary to popular belief, annulment is possible even after a couple has been married for many years. This is because the marriage is considered invalid and no amount of time will cure that deficiency.

Legal separation is not a dissolution of the marriage but it is a court ordered resolution of the basic issues that you would address in a divorce. Legal separation is accomplished through a written agreement between the spouses that defines each party’s rights regarding child custody, alimony, property division and financial support. New York law treats the separation agreement as a contract, making it enforceable in court. However, after separating you are still legally married, so you cannot marry someone else unless you get a divorce or annulment. Some couples seek permanent legal separation because their religion doesn’t allow divorce or because there are some financial or legal benefits to staying legally married.

If you believe your marriage has become dysfunctional and you are exploring legal options, be sure to consult with a capable family law attorney. Bryan L. Salamone & Associates, P.C. has long experience providing effective representation in divorce, legal separation and annulment cases in Nassau County, Suffolk County and all of Long Island. Call 1.631.479.3839 or contact us online to arrange a free initial consultation with one of our lawyers.

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