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Ending Your Marriage: Separation vs. Divorce vs. Annulment

Are you considering ending your marriage, but confused about the differences between a separation, divorce? Wondering if you might be able to get an annulment? Each option offers different benefits and drawbacks. In most states, there are three ways to end a marriage: divorce, separation, or annulment.

Divorce to end your marriage

A divorce is the most legally recognized and the only truly final way to end your marriage, besides annulment—which is incredibly difficult to get (see below). To be divorced, you must obtain a divorce judgment or final decree (a court order or legal document dissolving your marriage). All of the details of your parting ways with your spouse are documented in your divorce paperwork (how you've divided all assets, debts, properly, parenting arrangements and any support payments).

Divorces are granted on your state's "no-fault" or "fault" grounds. States that allow fault grounds have lists of conditions that qualify. These include adultery, criminal sentencing and mental illness. These grounds need to be proven in court. No-fault states usually do not require evidence of why you want a divorce. However, the behavior of one or both parties can impact other matters, such as custody or alimony. This is particularly true if evidence of abuse exists.

Can separation end your marriage?

A divorce or annulment is the only legal way to end a marriage and, in most states, the only way you can remarry. However, there are many reasons why a separation might be better for you.

Trial separation

Many couples who are considering ending their marriage begin with a trial separation. All of the legal rules of marriage apply here. During this "break" you and your spouse can decide if you wish to reconcile or divorce. While a trial separation is beneficial so you don't make any impulsive decisions, it's useful to set ground rules on things like finances, property and parenting to avoid conflict during the trial. You might want to consider entering into a postnup with your spouse.

Permanent separation

A permanent separation means you live apart and do not intend to reconcile. Most of the same married legal rules apply. But some states may allow you to change property rights if you live apart. A permanent separation may also allow you to keep your assets or debts to yourself. This means any assets or debts accrued after your date of separation only belong to the person who accrues them.

However, you will need to prove the specific date of separation if you wish to have these rights changed and to avoid potential consequences. In some states "date of separation" (DOS) is the date that you either file your divorce or indicate to your spouse that you want a divorce. For states that use DOS, assets, income or debts accrued after your date of separation only belong to the person who accrues them.

Legal separation

If you are sure the marriage is over but you do not want (or for whatever reason cannot get) a divorce, you may opt for a legal separation (if your state allows one). A legal separation means while you are no longer married, you're not divorced either – and cannot remarry. The court order does include all of the details divorce papers would, though.

Both parties can work out settlement agreements and custody arrangements, or allow the court to decide. It's almost always best for the couple to decide. If you need help, consult a mediator, lawyer, legal coach, or financial advisor. A legal or separation order can also establish how property rights and responsibilities, as well as parenting rights and custody.

Why opt for a separation over a divorce?

So, why would you opt for any type of separation if you have grounds for (and want) a divorce? Here are some of the most common reasons to opt for a separation:

  • To continue filing taxes jointly
  • Religious reasons
  • Want or need to keep existing insurance
  • Feel it is in the children's best interests to stay legally married
  • Personal opposition to divorce

Can you get an annulment to end your marriage?

Put more simply, an annulled marriage is a marriage that never existed in the eyes of the law. There's a common misconception that if you regret your marriage soon after exchanging vows, you can simply undo it with an annulment. The truth is, there are usually only four scenarios in which an annulment may be granted – and it's not easy to prove.

What are the court-accepted reasons for annulment?

  • An incestuous or bigamous relationship
  • One (or both) spouse was a minor on the date of the marriage
  • One lacked the mental capacity to marry (an “unsound mind")
  • One spouse was physically unable to consummate the marriage

For the court to grant the annulment, the Petitioner must prove at least one of these conditions exists. This can be very difficult. If you believe you may qualify for an annulment, a competent, licensed lawyer in your jurisdiction can be a huge help.

There are some exceptions state by state. For example, if you live in another state but visit Vegas, party too hard, somehow end up in a chapel and find yourself married, you can likely qualify for a relatively easy annulment in Nevada.

The biggest reason to seek an annulment instead of a divorce is that you want to totally undo the marriage like it never happened. You can check the "Single" box on all documents going forward, instead of the "Divorced" box. If your religion does not allow divorced individuals to remarry, an annulment allows you to marry again.

Still have questions? Schedule a free 15-minute call with Hello Divorce or book a legal coaching session. We can help you through the processes of legal separation and divorce. We can also help with annulments, but most people who choose that option opt to speak with a lawyer to make sure that they likely qualify for one.