AMLEN

AMERICAN MOROCCAN LEGAL EMPOWEREMENT NETWORK
Subscribe

Archive for April, 2015

Divorce or Annulment – Clarifications and Definitions under U.S family Law

April 12, 2015 By: Sarah Category: The situation

div.

 

Divorce is the legal process for ending a marriage.

Divorce can be difficult, particularly if childrenproperty and other assets are involved. There are several steps to the process – regardless of the specific situation – that must be followed to clear up all issues when a marriage ends.

No-Fault

A no-fault divorce occurs when a couple seeks to end to their marriage without stating a reason for the dissolution of the union. Most states allow this type of divorce. Often, a reason must be stated for the divorce. Most of the time, it is fine to declare the cause for the termination of the marriage as either “irreconcilable differences” or “incompatibility.”

Note: Some states require that a couple live apart for a specified period of time to obtain a no-fault declaration of divorce.

Fault

A fault-based divorce is one granted when the grounds stated by at least one spouse are accepted by the court. Not every state allows a fault-based divorce. Common faults include the following:

  • Cruelty – This often refers to excessive emotional or physical pain inflicted by one spouse towards the other.
  • Adultery – This refers to allegations that a spouse has been unfaithful during the course of the marriage.
  • Desertion – This refers to a spouse who simple leaves for a specified period of time. Each state has specific requirements as grounds for desertion.
  • Confinement in prison – This is when one spouse is sentenced to incarceration for a specific period of time.
  • Physical inability to engage in marital relations – This refers to either the inability to engage in sexual intercourse or the refusal to do so.

Options Prior to Divorce

Before ending a marriage, there are other avenues that can be taken before the dissolution of a marriage becomes permanent:

  • Trial separation – This is a period of time when the couple agrees to separate before deciding to officially end a marriage. This option is a private agreement between each spouse.
  • Living apart – Some states consider any debt or assets obtained during this period to be non-marital property. However, some states consider debts that are accumulated during separation to be joint debts until an actual divorce takes place.
  • Legal separation – This type of separation occurs when a couple chooses to separate and they go through a court to decide on matters such as division of assets, property, and debt, as well as issues concerning custody, visitation, and child support.

How to File for Divorce

  • File a petition for divorce with the local divorce court.
  • Temporary orders may be issued by the court to address immediate issues until the marriage is legally dissolved.
  • Preparation for the termination of a marriage often includes the following legal steps:
    • Disclosures
    • Interrogatories
    • Admissions of Fact
    • Request for Production
    • Depositions
  • Mediation is the process where both parties attempt to come to an agreement on all issues related to the end of the marriage outside of court. Many states require mediation before a divorce can proceed in court. If mediation is not successful, the court will manage the divorce proceeding.
  • Settlement: If the spouses cannot come to a mutual agreement, a judge may determine marriage fair property division settlement when ending the marriage. If either party is not satisfied with the decision, an appeal is the next step.

A legal professional can provide assistance with divorce proceedings and related options such as legal separation. This may be especially helpful if property, assets, and debt incurred during the marriage have to be divided. Divorce is rarely an easy decision, but proper legal advice can make the process smoother.

An annulment:  allows you to dissolve a marriage such that, in the eyes of the law, it never existed; but only under the right circumstances.

Annulment Overview

Annulments are a way for the courts to declare that your marriage is null and void. Unlike a divorce, which is a legal way to end a marriage, an annulment actually states that you were never married at all. In order for this type of legal action to be approved, you have to show that there is some legal reason that your marriage was not valid at the time that you got married. Some of these types of marital dissolutions occur after years of marriage. In many cases, the party desiring the annulment must file within a certain amount of time after the marriage has taken place.

Situations that may prevent a marriage from being legal and valid include reasons such as bigamy, incest, underage parties, one or both parties being under the influence of alcohol or drugs, and physical incapability of consummating the marriage. Other possible grounds include proxy marriages, in which one party is not physically present at the wedding, or mock marriages, where the parties had no real intention of entering into a real marriage with one another. Temporary insanity and diminished mental capacity are also grounds in many states, as is a marriage where one party was coerced or forced into marriage.

Criteria for Annulments

The criteria for nullifying a marriage varies from state to state. In many cases, some instances of a qualifying situation will be approved, but other similar cases may not. For example, a marriage made with a person who is under the age of 16 is not valid unless the marriage was entered into with parental consent. Another example is that of impotence, or being physically incapable of consummating the marriage. This is grounds for dissolving a marriage unless the other party was aware of the issue before the marriage. In some cases, the request must be made within a specified period of time after the marriage took place. Because the laws governing the dissolution of a marriage are much more stringent than those for a divorce, it is always best to consult a lawyer immediately if you think you have grounds for an annulment of your marriage.

Unlike a divorce, an annulment is a declaration that the marriage never happened. Because of this, there are often legal implications involved in dissolving the marriage. One issue that is affected is the legal parentage of any children born during the marriage. A judge may have to make an order specifically dealing with legal custody and child support rights with regard to both parents. In addition, community property laws may not apply to annulments in the same way they do to divorce cases. Spousal support and maintenance are also issues that may be impacted differently than in divorce cases. Consulting a lawyer in your area about the statutes pertaining to annulments in your state will help you navigate the process without losing any of your rights.

Source: LegalStreet