What Is the Difference Between Separation and Annulment?

There are several ways to terminate a marriage in New Jersey, and the path you choose will depend on a number of factors, including the reasons for ending your marriage. In addition to filing for divorce, you can file for a legal separation or an annulment. Legal implications are involved in both options, so it is important that you pursue the method that meets your specific needs and your family’s needs. A highly skilled and experienced divorce lawyer can discuss the pros and cons of each option, determine the best legal course of action, and assist you with every step of the process you choose.

What Is a Separation?

If you and your spouse are experiencing marital problems but you are not ready to file for divorce, you may want to consider a separation. This will allow you to take some time to live separately, consider the issues that have caused you to drift apart, and decide whether your marriage is worth saving or if you intend to proceed with a divorce. There are four types of separation, including the following:

• Trial separation: During a trial separation, you and your spouse are still married but live separately. This may mean living in the same house or living apart on a trial basis. It does not change your legal rights and responsibilities towards each other and your children. For a trial separation to be as productive as possible, it is a good idea to work out a separation agreement that addresses the following issues:
  • Who will stay in the marital home.
  • How you and your spouse will handle expenses and budgeting.
  • How each of you will spend time with the children.
  • A timeline for how long the trial separation should last and when you will discuss the next steps.
• Living apart: As the name suggests, this is when spouses no longer live in the same residence.
• Permanent separation: A separation becomes permanent when you and your spouse decide to split up for good. Any property, assets, or debts acquired during a permanent separation will likely become separate property.
• Legal separation: A legal separation is similar to a divorce and is an option for couples who may not want to file for divorce for financial or religious reasons but do not want to continue living together as a married couple. The couple will need to file a separation agreement and go to family court, where a judge will issue orders on things like the division of property, custody, child support, family time, spousal support, and protection orders in cases where domestic violence is an issue.

What Is an Annulment?

An annulment is a legal procedure declaring that the marriage never existed. Whereas a divorce or a separation terminates a marriage, an annulment nullifies the marriage as if it never happened. To secure an annulment, the party initiating it must prove they have grounds to do so. Annulments are more challenging than divorce or separation and will only be granted in certain circumstances. Your divorce lawyer can determine whether you have grounds to seek an annulment and help you navigate every step of the process.

What Are the Grounds for an Annulment? 

For some couples, the idea of being granted an annulment may be appealing, particularly for those who have deep religious beliefs and would like the option of being able to get married again in the church. However, an annulment will only be granted if the spouse who is initiating the annulment can prove that there are grounds that the marriage was never legally valid. The following are examples of legal justifications for seeking an annulment in New Jersey:

• Bigamy: If one spouse is still legally married to someone else or never finalized a divorce, this is a legally acceptable basis for requesting an annulment.
• Lack of capacity: If a person lacks the mental ability to consent to a marriage, this may be grounds for an annulment. Common scenarios that would warrant an annulment may involve a party that is suffering from a mental illness or is impaired by an intoxicating substance that prevents them from understanding what is happening and making a sound decision.
• Incest: If the parties entering into marriage are too closely related by blood to marry legally, this is grounds for an annulment.
• Underage: In New Jersey, both parties must be 18 years of age to marry legally, so if one or both parties are underage, the marriage may be annulled.
• Duress: If a party is forced to marry under the threat of violence, either against them or someone close to them, this is legally acceptable grounds for an annulment.
• Impotence: If a spouse cannot consummate the marriage or intentionally hides the fact that they cannot conceive a child, this is grounds for an annulment.
• Fraud: A spouse may seek an annulment if the other spouse makes a material misrepresentation that fundamentally impacts their marriage. For example, misrepresenting a substance abuse problem, a desire for children, or immigration status may warrant an annulment.

What Are the Main Differences Between a Separation and an Annulment?

A separation and an annulment are both alternatives to getting a divorce. However, there are significant differences between the two. If you are considering both options, it is important to understand how they differ and their legal implications. For example, an annulment views the marriage as if it never existed. Once the annulment has been finalized, both parties can remarry or enter into a domestic partnership with another person. A legal separation is similar to a divorce in many ways, although the couple remains legally married. This means both parties cannot remarry or enter a domestic partnership until they finalize a divorce agreement.

Another key difference between the two is that the party filing for an annulment must provide legally acceptable grounds for seeking an annulment. In addition, there are strict statutes of limitations on annulments. In most cases, an annulment request must be made within four years of marriage. Since New Jersey is a no-fault state, providing grounds for a separation is unnecessary. This also allows you to reconcile if you and your spouse decide to try to work things out after a separation. This is not the case with an annulment. Once the marriage has been annulled, it is a formal acknowledgment that it never existed.

How Do I Know Which Option Is Right for Me?

Whether you decide to pursue a separation, an annulment, or file for divorce, it is a complex and complicated decision that will have personal, financial, and legal implications. It is highly recommended that you consult with an experienced divorce lawyer who will work closely with you to determine the legal course of action that is right for you based on your unique situation. A dedicated divorce lawyer will address your questions and concerns and pursue the best possible settlement outcome.

Our Somerville Divorce Lawyers at Lyons & Associates, P.C. Assist Clients Who Wish to End Their Marriage

If you and your spouse intend to terminate your marriage, do not hesitate to contact our Somerville divorce lawyers at Lyons & Associates, P.C. To schedule a free consultation, call 908-575-9777 or contact us online. Located in Somerville, Morristown, and Freehold, New Jersey, we serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, Morris Plains, and Monmouth County.

• Category: Divorce, Family Law