Separating from your spouse is never an easy decision or process, even if you’re the one who wants to separate. The process requires not only a physical separation, but also untangling finances and assets, and, sometimes, dealing with child custody issues.
Married couples can dissolve their relationship by filing for divorce or seeking an annulment. The best course of action depends on your particular situation and the reason for separation. We have provided this guide to explain the intricacies of both so you have the information you need to make the best choice.
Defining Divorce and Annulment
Divorce and annulment are two distinct ways to dissolve a marriage. Divorce is the legal termination of a marriage that typically requires going through a lengthy legal process to divide assets, liabilities, and child custody. Unlike divorce, an annulment technically voids a marriage. Some major differences between the two include:
- Grounds for annulment of marriage are stricter than grounds for divorce.
- Annulment typically occurs after a short period of marriage, while divorce can occur at any time throughout a marriage.
- Spouses rarely receive alimony after an annulment.
- Marriage divides assets among spouses, while after an annulment each person leaves the marriage with the assets they brought into the relationship.
Ultimately, both types of dissolution treat child custody issues the same. Although an annulment might seem easier, not everyone qualifies for one. Parties need to choose the right way to dissolve their marriage based on their individual situation.
Choosing the Right Way to Dissolve Your Marriage
The path you choose to dissolve your marriage depends on your grounds for dissolution. The scenarios which qualify for an annulment are specific. Under Virginia state law, one of the following must occur for you to qualify for an annulment:
One spouse already had a legal marriage with another partner, leading to an invalid marriage with you.
Spouses are closely related, whether parent-child, siblings, or other blood relatives.
One spouse is not capable of having sexual relations.
One spouse’s deception led to the marriage.
- Criminal history
One of the spouses is a former prostitute or convicted felon, for example.
- Lack of consent
One of the spouses cannot give consent because they have a mental illness or lack the mental capacity to consent. This also applies to underage people who get married.
One of the spouses was forced to marry because of fear.
- Children born from another
One of the spouses was pregnant by or impregnated another person and the baby was born in the first 10 months of marriage.
Grounds for divorce are much less specific. If both you and your spouse agree to a divorce, all you must do is live separately for one year if you have young children or six months if you have no children (or adult children). Legal separation is standard practice for a no-fault divorce, and most couples simply cite irreconcilable differences.
Other grounds for divorce in Virginia include adultery, sodomy, buggery, a felony conviction, or willful abandonment. Ultimately, you need to evaluate your situation and decide the right option for you.
An Overview of Divorce and Annulment Processes
The processes for filing for divorce and annulment are very similar, but the divorce process is typically more involved.
If you want an annulled marriage:
- You must file a Complaint for Annulment with the county circuit court where you or your spouse reside.
- You or your spouse must have lived in the county for at least six months before you can file the complaint.
- The complaint is a basic form that requires the name and contact information for you and your spouse as well as the date and time of the marriage.
- If the court must make decisions about child custody and visitation or child support, you need to indicate this on your complaint.
- Courts do not divide property or order spousal support in a Virginia annulment like they do in a divorce.
- You must serve annulment papers to your spouse the same way you need to serve divorce papers.
- In both processes, you need to attend a hearing.
- For an annulment, you must prove the legal grounds of the annulment and the judge will make a ruling.
If you file for divorce in Virginia:
- You must separate for six months or a year depending on whether you have children.
- You need to prepare a property settlement agreement with your spouse.
- You can then file the written property settlement agreement and your divorce complaint with the circuit court.
- Once you’ve filed your paperwork, you need to serve papers to your spouse and wait for him or her to respond.
- If your spouse does not contest the divorce, a judge will hear your case and resolve issues about personal property, child custody, child support, and spousal support.
- If your spouse contests the divorce or you want to provide evidence for fault, you need to present your case to a Commissioner in Chancery, who will send you their report within 30 days.
- After you receive the report, you can submit your Final Decree of Divorce to the judge.
Each process has intricate elements that can be difficult to track on your own, especially when emotions are involved. It is important to seek the advice of qualified professionals to ensure you are aware of every important piece and able to make decisions from an objective frame of mind.
Contact an Experienced Divorce Lawyer to Help You Proceed
Choosing to end your marriage is never easy. Even in the easiest situations, it’s in your best interest to protect your rights when you dissolve yours. You might be unsure which path to dissolution is the best for your situation, but an experienced lawyer can help. Working with a trusted divorce lawyer can ensure your annulment or divorce goes more smoothly. Contact the Law Office of Michael Ephraim today to discuss your annulment and divorce questions, or to get expert legal advice about other separation-related or family law questions you might have.