Annulments & Legal Separations

Ending a Marriage : Divorce, Separation & Annulment

Married parties that want to end a marriage have several legal options available to them. Divorce is the most common way to end a marriage because it is the easiest process to obtain court approval to terminate the legal marital relationship. Divorce allows both parties to move on and remarry if they wish. However, some married couples may not want a divorce for moral or financial reasons. Legal separation is available for couples that are uncertain whether they want to end their marriage and prefer to live apart but without needing to finalize the decision. A couple may file a petition for legal separation with the court and wait a period before filing for divorce. Annulment, which allows for a couple to invalidate the existence of a marriage, is granted by a court only under specific circumstances, which has the effect of voiding the marriage almost as if it never happened.

Divorce Defined

A divorce is defined as a dissolution of marriage. Divorce ends the legal marital relationship, and a divorce decree or judgment outlines the parties’ future relationship. The judgment usually details how the parties will split assets, property, debt, and child custody rights. The process of divorce entails the filing of a petition with the court, hearings, and a trial before a judge if the parties cannot come to an agreement.

Grounds for a divorce vary state-to-state. Most states allow parties to divorce because of an irreparable breakdown in the relationship. This is usually called a “no-fault” divorce and allows the parties to divorce without having to show fault by the other party. Some states allow the parties the option to pursue a “fault” divorce. In a fault divorce, the party seeking divorce alleges that the other party committed a wrongdoing, such as adultery or abuse. The party seeking the divorce has to present evidence to the court to prove the allegations. If that party prevails, he or she may be entitled to additional spousal support aimed at punishing the at-fault party.

The most important aspect of a divorce is its finality. Although the parties may petition the court to revisit issues like financial support or child custody, the end of the marriage is final and cannot be undone.

Legal Separation Defined

 A legal separation does not end a marriage. It allows the married parties to live separately but have the court rule on issues like dividing assets or child custody. A legal separation allows people who do not want divorce for religious, financial, or other reasons to legally separate and end the marital estate so that assets and debts can be divided between the parties. At the same time, it allows each party to still receive health care and other benefits like social security. It also gives the parties a period to resolve issues before they decide to proceed with a divorcee.

In a legal separation, the parties are still considered married and cannot marry another person until they get divorced. The parties can reconcile and end the legal separation, whereas a divorce is final.

A legal separation differs from married couples “separating.” Separating or moving out of the family home without filing a petition for legal separation with the court has no legal effect on the parties or the marriage.


 An annulment is one more way to end a marriage. Instead of ending the marriage like in a divorce, an annulment makes it as if the marriage never happened. An annulment happens when a court determines that a marriage was never legally valid. The benefit of an annulment is that once the annulment is granted, the parties may consider themselves to have never been married. Legal reasons for an annulment are limited and include the following:

  • Underage marriage: one or both parties are under the age of 18, and approval of both parents was not obtained prior to marriage.
  • Inability to consummate the marriage: the parties may seek an annulment where one is physically incapable of having sexual intercourse, which he or she did not know of at the time of the marriage.
  • Unsound mind: where either party was unable to understand the nature of the marriage and marital obligations.
  • Incestuous marriage: marriage between close blood relatives.
  • Bigamous marriage: marriage where one spouse is already married to another person before entering a second marriage.
  • Fraud: the marriage occurred as a result of fraud where one party hides a vital fact about the marriage from the other party. Examples include where one person enters into the marriage for the purpose of obtaining a green card or where one party lies about wanting children.
  • Force: one party was forced into a marriage under duress or threat of violence.
  • Incurable mental illness: where one of the parties is mentally ill for more than five years and cannot be cured.


How to File for an Annulment

Filing for an annulment involves largely the same process as filing for divorce. One or both parties file a petition for annulment with the court along with a declaration stating the basis for the annulment. The party seeking an annulment must file supporting evidence that proves one of the qualifying reasons for an annulment existed at the time of the marriage. The party then serves his or her spouse with the petition for annulment. The court will hold a hearing to determine whether to grant the annulment.

Courts rarely grant annulments because the circumstances that allow for an annulment are narrow, rarely occur, and may be difficult to prove. For example, it may be difficult for a party to produce evidence of unsound mind at the time of a marriage unless there is documented evidence from witnesses, medical professionals, or other parties that can truthfully attest to a party’s state of mind.

Annulment versus Divorce

An annulment differs from a divorce in several ways. The main difference is that an annulment operates as if the marriage never happened because it was an invalid marriage from the outset. Although there will remain a legal record of the marriage and annulment, the marriage can be considered to have never taken place. A divorce occurs after a valid marriage takes place and legally ends a valid marriage.

Another difference is that there may be a statute of limitations to file an annulment depending on the state. The statute of limitations is the deadline to file, and the parties may lose their right to file for an annulment if they miss the deadline. For example, in New York, there is generally no statute of limitations except for lack of physical capacity to consummate the marriage, which must be filed within the first five years of marriage. In California, an annulment for fraud must be filed within four years of discovery of the fraud and an annulment for underage marriage must be filed within four years of the date the minor turns 18.

A divorce, on the other hand, can be filed at any time throughout the marriage until death of one of the parties.

Finally, annulments are rarely granted because of the uncommon circumstances that underlie the bases for annulments. Divorces are commonly granted because courts do not want to force people to remain married who want a divorce. The grounds to file for divorce vary widely from state-to-state and can be as simple as irreconcilable differences between the parties. In a case where the parties cite irreconcilable differences, the court does not pry into the reasons for the breakdown of the marriage. Instead, a court may grant a divorce after the parties determine how to separate assets and divide child custody.

In an annulment, the court requires the parties to produce evidence of the basis for the annulment. For example, if one of the parties claims he or she was underage at the time of the marriage, that party would submit to the court evidence such as a certified copies of a birth certificate and the marriage license.

Annulment versus Legal Separation

An annulment differs from a legal separation. In a legal separation, the parties entered into a valid marriage and legally agree to separate. A legal separation does not end the marriage but acts as a legal record of the parties’ intent to separate. Legal separation ends some of the obligations that the parties would otherwise have under a marriage. Legal separation also ends the marital estate, so the parties can divide assets and debts without having to end the marriage.

Conversely, an annulment voids the marriage entirely and establishes that the marriage was not valid. Parties to an annulment may consider themselves to have never been married, whereas parties to a legal separation remain legally married. A legal separation can be undone by the parties should they choose to remain together. An annulment is final.

How to Determine which Option is the Best Choice

Determining the best option for ending a marriage depends largely on the goals of the parties. A divorce is a desirable option for parties that want to end their legal relationship and definitively split assets, debts, and child custody. Divorce is a good option for people who are certain they want to end their marriage.

If the parties are unsure if they want to permanently end their marriage, legal separation may be a good option. It allows the parties to divide assets and debts while staying married. Legal separation is also desirable where one or both parties are opposed to divorce for religious, financial, or other reasons because the parties can live separate lives without having to end the marriage in divorce. It can also be set aside should the parties decide to reconcile. Thus, legal separation may be used as a steppingstone for parties that are not yet ready to end their marriage for good.

An annulment is only an option under limited circumstances. Although an annulment may have the most appeal because it undoes the marriage as if it never happened, it is only an option where limited extenuating circumstances are present. Very few people may be able to obtain an annulment, and thus it is a rare option for parties seeking to end a marriage.

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