Separation, Annulment, and DivorceCharles and Rachel are considering ending their marriage, but they are not sure that is what they want to do. They have decided to live apart for a while. They want to know their rights and obligations regarding support, time with children, and use of assets that they acquired during the marriage. What are their options?
Slightly less than half of all marriages in the United States end in divorce. The divorce rate is down from a peak in 1979-1981, but the current divorce rate is still near double what it was in the 1950s. Meanwhile, the marriage rate has been dropping since the 1980s – down 30 percent between 1980 and 2004.
The state sets the requirements for creating a marriage. The state also sets the requirements for ending a marriage, but the regulations are more complicated since there are more issues to sort out when a marriage ends than when it begins. (Perhaps if before marriage, men and woman spent more time exploring issues they will have to deal with during marriage, the divorce rate would be lower.)
Separation, as the term implies, means the wife and husband are living apart. The wife and husband generally are not required to separate in order to obtain a divorce, although for psychological reasons, it usually works out that way. In some states, certain grounds for divorce may require that the parties live apart for a specified period of time, but in most states there are grounds for divorce that do not require a period of separation.
A legal separation also means the husband and wife are living apart, but a legal separation has the added element that the arrangement is ordered by the court or agreed to by the parties in a written document. The fact that the separation is part of a court order or written agreement makes it a “legal separation”
Payments of support during a period of separation sometimes are called temporary maintenance or alimony pendente lite. (“Pendente lite” is a Latin phrase which means “while the action is pending.”) If the person obliged to make such payments fails to do so, a court could order the payments and take steps to enforce payments, such as garnishing wages or bank accounts or holding a person in contempt of court.
Written agreements regarding support are necessary if the person making the payments wishes to claim a tax deduction for paying support to the spouse. If the person paying support obtains a deduction for the amount paid, then the same amount will be treated as taxable income to the recipient. Without a written agreement or court order, the payments of support will not be deductible to the payer, nor would they be treated as income to the recipient.
If the husband and wife have children, the separation agreement or court order can specify arrangements regarding custody, visitation, or parenting time with the children, and those arrangements also can be enforced by the court. A separation agreement also can provide for who will occupy the family home while the divorce is pending and the degree to which the parties can liquidate or transfer assets, such as funds in an investment account.
An informal or legal separation does not mean the husband and wife must divorce. They are free to reconcile at any time and resume living together. For some couples, a separation serves as a cooling off period—a method of relieving immediate pressure while they sort out what they want to do with their lives.
If husband and wife decide to live together again and there is a court action pending, the action should be dismissed (at least after the couple is reasonably sure they will stay together). “Dismissed” means the case is taken off the list of active cases before the court. If the couple does not dismiss their pending case, the court usually will dismiss the case automatically if nothing has been done on the case after a certain period of time (such as six months to one year). If the husband or wife later decides to divorce, the case can be refiled.
Reasons to Separate Legally
The main reason for obtaining a legal separation instead of an informal separation is to make the rights and responsibilities of the parties during the period of separation more certain. If one party–usually the wife–will be receiving financial support during the period of separation, the court order or written agreement will make support an enforceable right.
A separation (or legal separation) is not the same as a divorce. Persons who are separated may not remarry. They must wait until a divorce is final before being able to remarry. The terms of a separation agreement usually can be modified by the court or by the parties themselves during the period of separation. Courts, or the husband and wife by agreement, also can modify the provisions of support, custody and visitation when the divorce is finalized.
Terms of Separation
If the final terms of a divorce are likely to be contested, the parties should be cautious about what they accept as a voluntary, temporary arrangement during separation. Although courts usually have the power to depart from the terms of a separation agreement when entering a final order of divorce, judges may look at the status quo and think, “If this arrangement was workable during separation, it should work after divorce too.” If someone is agreeing to terms during a period of separation that they would not want to live with after the divorce, they should make abundantly clear in the separation agreement that they are not binding themselves to the same conditions after the divorce is final.
An annulment is a court ruling that a supposed marriage was never valid. One of the most common grounds for annulment is fraud. For example, one person may have not disclosed to the other a prior divorce, a criminal record, or an unwillingness to have sexual intercourse. An annulment also may be granted may if one of the parties to the “marriage” was still married to someone else at the time of the marriage that is at issue. Other bases for annulments include marriage of an underage person, marriage to too close a blood relative, and marriage by a person who was under duress as the time of marriage.
Annulments are uncommon compared to divorces because divorces are generally easy to obtain and the bases for an annulment are narrower than the bases for a divorce. One party may prefer an annulment, however, in order to avoid some of the financial obligations that a court might impose in a divorce. For more discussion of legal annulments, Aside from annulments granted by a court, a person also may seek a religious annulment of a marriage. A few religions will not permit a member of the faith to enter into a marriage if the member already had one valid marriage. In that circumstance, a person who was divorced would not be permitted to remarry by a member of the clergy of that faith since the divorce implies that a valid marriage existed. However, if the member was able to obtain a declaration by religious court or religious official that the first marriage was not valid, then the member may be free to remarry.
If a person seeking a divorce (or legal annulment) is concerned about the ability to remarry within his or her faith, that person should seek an agreement or court order that the former spouse will cooperate in obtaining a religious annulment or divorce.
A divorce—referred to in some states as a dissolution of marriage—is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. A judgment of divorce (the formal paper issued by the court) usually provides for division of property and makes arrangements for child custody and support, if applicable.
Although divorces may be emotionally contentious, most divorces (probably more than 95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such things as division of property, spousal support, and child custody between themselves, often with an attorney’s help. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval of a mediated agreement is virtually automatic if the agreement appears to meet a minimal standard of fairness. Mediation is discussed more in chapter 16.
If parties are unable to agree about property, support, and child custody, they may ask the court to decide one or more of those issues. Chapters 10-13 will discuss how courts decide those issues.
A threshold requirement for obtaining a divorce in most states is residency or domicile of one or both parties who are to be divorced. “Residency” refers to the state in which a person lives; “domicile” refers to the state that the person regards as “home.” Usually the state of a person’s residency and domicile are the same, but sometimes they can be different. For example, a couple may reside four months each year in the state of their “summer home,” but regard another state where they spend the rest of the year as their true home (and that state would be the state of their domicile).
Residency (or domicile) requirements vary. A few states have no residency requirement. That means a person can arrive in a state and seek a divorce on the same day. Residency requirements of other states range from six weeks to one year; six months is the most common time period. In states with a residency requirement, a party must have lived in the state for the specified period before a divorce can be granted.
The party seeking a divorce must state a ground for divorce in the papers filed with the court. The grounds may be based on no-fault or fault, depending on the state. All states now offer no-fault divorces, although some states require a long period of separation before a no-fault-divorce is granted. Approximately thirty-two states also offer fault-based grounds as an additional option.
A no-fault divorce is a divorce in which neither the wife nor husband blames the other for breakdown of the marriage. There are no accusations necessary to obtain a divorce—no need to prove “guilt” or “fault.” Common bases for a no-fault divorce are “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” As those terms imply, the marriage is considered to be over, but the court and the legal documents do not try to assign blame.
Another common basis for a no-fault divorce is that the parties have lived separately for a certain period of time, such as for six months or a year, with the intent that the separation be permanent.
Over the last forty years, “no-fault” has replaced “fault” as the dominant basis for obtaining a divorce. No-fault divorces are considered a more humane and realistic way to end a marriage. Husbands and wives who are divorcing usually are suffering enough without adding more fuel to the emotional fires by trying to prove who-did-what-to-whom. The laws of no-fault divorce recognize that human relationships are complex and that it is difficult to prove that a marriage broke down solely because of what one person did.
Some critics of no-fault divorces are concerned that an economically dependent spouse may not be adequately protected when it is so easy for the other spouse to obtain a divorce. The critics argue that no-fault divorces result in lower awards of property and support to economically dependent spouses than fault-based divorces. Proof of cause-and-effect on this issue is far from certain.
In the approximately thirty-two states that allow divorces based on fault (in addition to no-fault divorces), the grounds for fault-based divorces vary. Here is a list of the possible grounds: (1) adultery, (2) physical cruelty, (3) mental cruelty, (4) attempted murder, (5) desertion, (6) habitual drunkenness, (7) use of addictive drugs, (8) insanity, (9) impotency (usually unknown to the partner at the time of marriage), and (10) infection of one’s spouse with venereal disease.
Choosing Grounds for Divorce
Husbands or wives in the mood for revenge probably could come up with a multi-count complaint. Some spouses want the emotional release of proving fault by their mates. But courts are not a very good forum for such personal issues, and the accuser is usually less satisfied than he or she expected to be. The degree to which “fault” affects division of property, support, and custody will be discussed in the chapters on those subjects.
Legislators in some states have adopted a concept called “covenant marriage.” As of 2005, three states have laws regarding covenant marriage—Arizona, Arkansas, and Louisiana. Louisiana adopted the first covenant marriage law in 1997.
Under covenant marriage laws, couples seeking a marriage license are given a choice of obtaining a regular marriage license or a convenant marriage license. With a covenant marriage license, a couple commits to undergoing premarital counseling and to seek counseling before seeking a divorce. In addition, the grounds for divorce are narrower with a covenant marriage than a regular marriage. Depending on the law of the state, the grounds for divorce for a covenant marriage may be restricted to the more serious fault-based grounds, such physical abuse or adultery.
Proponents of covenant marriage see it is a way to strengthen marriage and deter divorce. Critics of convent marriage are concerned that the law may keep people in conflictual, dysfunctional relationships for a longer period of time, and this can be harmful to children as well as to the husband and wife. In the three states with covenant marriage laws, only 1 to 2 percent of people marrying have opted for covenant marriages instead of regular marriages.
Resumption of Unmarried Name
A woman who divorces, who had taken her husband’s last name during their marriage, may resume her unmarried name or keep her married name as she wishes. She can even change her name to something completely new, as long as she is not doing so for fraudulent purposes. Court proceedings generally are not necessary in order to change a name.
If a woman is changing her name, she should notify government agencies and private companies that have records of her name. Examples of places to notify: Internal Revenue Service, Social Security Administration, Passport Agency (within U.S. State Department), Post Office, state and local tax agencies, driver’s license bureau, voter registration bureau, professional licensing agencies, professional societies, unions, mortgage companies, landlord, banks, charge card companies, telephone companies, cable company other utilities, magazines and newspapers to which she subscribes, doctors and dentists, and schools and colleges that she attended or that her children attend.
It can be useful to have the divorce decree state that the wife will resume her unmarried name, but generally it is not necessary to do so in order for a woman to make a valid name-change.
•A legal separation can be an agreement signed by the parties, an order of the court, or both. A legal separation creates legal rights that can be enforced by a court while the divorce is pending. These rights might include child support, alimony, occupancy of the family home, and allocation of time with children.
•All states have some form of no-fault divorce, such as irreconcilable differences or incompatibility. As an alternative, most states (but not all states) have grounds for divorce based on fault, such as mental cruelty, physical cruelty, and adultery.
The American Bar Association Guide to Marriage, Divorce & Families
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