When married people have relationship problems, they are sometimes emotionally driven to file for divorce with little understanding of the laws or proceedings involved. Although dissolving the marriage is a solution, a permanent one, other legal actions could apply to the circumstances.
As family law attorneys typically explain to their clients early in the legal representation, there are three legal courses of action possible:
- Divorce
- Legal separation
- Annulment
Of the three, an annulment is the least likely to be filed because of its limited application. Across the board, the two most common filings are for divorce or legal separation. Regardless, all three proceedings can involve child custody decisions, the division of marital property, child support, and spousal support (alimony or spousal maintenance).
Be aware that these are civil lawsuits conducted in state courts. The domestic relations laws, statutes, and court rules depend upon the jurisdiction. Military divorces frequently get special treatment concerning residency requirements when establishing jurisdiction. For more specific information, contact an experienced divorce lawyer in your area.
Dissolving the Marriage Through Divorce
When the family law judge issues a final decree of divorce or final decree of dissolution as it is commonly known, then the marriage is legally terminated. In other words, the parties are now former spouses, free to marry other people if they choose.
The grounds for divorce are asserted in the complaint or petition. On this, the states vary considerably. For example, Tennessee has 15 different grounds for divorce, most of which are fault-based (adultery, for example). Arizona, by comparison, has one – irreconcilable difference – and is sometimes referred to as a “no-fault” divorce state. A fault may still form the basis for a divorce, but a specific marital transgression need not be asserted and proven for the court to divorce the parties (that's assuming it's not a covenant marriage).
Why Legal Separation?
A decree of legal separation differs from divorce in one very important way: the spouses are still married. Knowingly marrying someone else while still married can be bigamy, a crime.
As with divorce, always look to your jurisdiction for laws and court rules controlling legal separation or a decree of separate maintenance.
When Is Annulment an Appropriate Remedy?
In general, an annulment is sought when there is a legally recognized impediment to the marriage. That is, something renders the marriage either “void” (simply not legal from the very beginning) or “voidable” (could be annulled if the injured party desires). Here are a few examples: a minor child marries without a parent's or guardian's consent. The person was forced into marrying under duress or threat of physical harm. The marriage partner was impotent. The marriage took place while one (or both) of the parties was mentally incapacitated.
There's Always the Possibility of Reconciliation
Lastly, many spouses attempt to reconcile their differences before the divorce, legal separation, or annulment is finalized. If reconciliation seems likely, a party may ask the court to dismiss the case or postpone proceedings until after mediation or conciliation sessions are attempted. Parties who have separated may participate in marriage counseling which, if successful, could result in resumed cohabitation, eased tensions between them, or personal confirmation that their differences are indeed irreconcilable.
Amy Dohrendorf is a partner with Stewart Law Group, an Arizona law firm with offices in Chandler, Phoenix, Scottsdale, and Peoria. Stewart Law Group has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
