Divorce, Annulment, or Separation

Which Should You Choose?

 

You may be wondering, what exactly are a divorce, annulment, and separation and how do they differ from one another? Below you will find a brief overview of each in addition to some helpful information to assist you in deciding which may be better for you and your family. 

 

Divorce

A divorce is the legal dissolution of a marriage by a court order.  Sadly, divorce is a part of life in this country.  According to the American Psychological Society, about 40 to 50 percent of married couples in the Unites States divorce.  The divorce rate for subsequent marriages is even higher.  At the Walls Law Firm, we believe that the decision to divorce should not be taken lightly.  If there is any hope that you may be able to save your marriage, we strongly suggest you give it a try.  However, if you decide that divorce is your best option, our Memphis divorce attorney is here to compassionately guide you through the divorce process so that you can divorce with dignity.

 

In order to obtain a divorce in Tennessee, a court action will need to be initiated and you must have an order from a judge or chancellor declaring you divorced. The court action is initiated by filing a Complaint for Divorce.  During a divorce proceeding, spousal support, alimony, child custody, child support, child visitation, distribution of marital debts, and distribution of marital assets are addressed and decided upon by the parties, or the court if the parties are unable to reach a fair and reasonable agreement. Divorce can be difficult, but it does not have to be devastating.  Some divorces are more unpleasant than others.  This is typically dependent upon the parties’ ability to be amicable and work together to reach a fair and reasonable divorce settlement.

 

Annulment

A divorce ends a valid marriage.  Unlike a divorce, an annulment ends a marriage by declaring that the marriage was never valid.  Similar to a divorce proceeding; spousal support, alimony, child custody, child support, child visitation, distribution of marital debts, and distribution of marital assets are addressed and decided during an annulment proceeding.  However, unlike a divorce, you will have the right to consider yourself “single” instead of “divorced” after the granting of the final decree of annulment.

Annulments are granted by the court only in certain rare cases.  The legal effect is to void a marriage from the very beginning–as if the parties had never married.  People typically pursue an annulment instead of a divorce due to religious beliefs.  This is because some religious organizations do not sanction divorce or subsequent remarriage; however, they will sometimes allow remarriage in the church if the first marriage was annulled.  If you are able to obtain a religious annulment, you will still need to obtain a civil annulment by the court in order for your marriage to be legal deemed annulled.

In Tennessee, annulments are rarely granted.  The grounds for an annulment in Tennessee are:

• Insanity – To receive an annulment on the ground of insanity, the plaintiff must prove to the court that a spouse was insane or unable to understand the nature of marriage when the spouses married.  If the spouse who was suffering from insanity at the time of the marriage later regains sanity during the marriage, and continues to live with the other spouse, it is likely that the marriage will not be annulled.

• Underage – To receive an annulment on the ground of underage, the plaintiff must prove to the court that one or both spouses was too young to be married and did not receive approval from their parent or the court.  The legal age for marriage in Tennessee is 16.  A person acting on behalf of the underage spouse, such as the spouse’s parent or guardian, may file a Complaint for Annulment in place of the underage spouse.  If one spouse is under 16 at the time of the marriage, but had permission from a judge to get married, then it is unlikely the marriage will be annulled.

• Incest – To receive an annulment on the ground of incest, the plaintiff must prove to the court that the spouses are related by blood so that their marriage is illegal under the laws of the state in which they married.  In Tennessee, this requires that they be closer related than first cousins.

• Bigamy – To receive an annulment on the ground of bigamy, the plaintiff must prove to the court that a spouse had a living husband or wife at the time of the marriage. If one spouse had a living husband or wife at the time of the marriage, but the husband or wife had been missing for at least five years without any signs of life, then it is unlikely that the marriage will be annulled.

• Duress – To receive an annulment on the ground of duress, the plaintiff must prove to the court that a spouse only married because they were coerced.

• Fraud – To receive an annulment on the ground of fraud, the plaintiff must prove to the court that one spouse lied to the other about something that was important to the other in getting married, such as a pregnancy or inability to have children. The fraud (or lie) has to be essential to the marriage. An annulment is likely to be granted if the wife was pregnant by another man at the time of the marriage and the spouses had not had sexual intercourse prior to the marriage; or if one spouse lied to the other spouse about being infertile.

• Impotence – To receive an annulment on the ground of impotence, the plaintiff must prove to the court that one spouse physically cannot have sexual intercourse.  The impotence has to have existed prior to the marriage and be permanent.

• Denial of marital rights – To receive an annulment on the ground of denial of marital rights, the plaintiff must prove to the court that one spouse refuses to live with the other or have sexual relations during the marriage.  The spouses must have never lived together or have had sexual intercourse.  An annulment is unlikely to be granted if the spouses signed an agreement prior to the marriage agreeing not to live together or engage in sexual relations.

In Tennessee, you can seek to obtain an annulment by filing a Complaint for Annulment in the Chancery or Circuit Court. If an annulment is granted, it means that you and your spouse never had a valid marriage.  Thus, you can legally say that you were never married to your spouse after an annulment.  However, if you have children during a marriage that was annulled, they will still be deemed legitimate under Tennessee law.  Legitimacy will afford your children the right to inherent from and be financially supported by both parents. If for religious or other reasons you want an annulment, tell me before the divorce is filed.

 

Separation

A separation occurs when you and your spouse are living apart from one another.  Even though you and your spouse may be living apart from one another, it does not mean that you are automatically legally separated or divorced, even if you and your spouse have been living apart for years.  In order to obtain a legal separation or divorce, you must have a court order signed by a judge or chancellor declaring you and your spouse legally separated or divorce.  When you and your spouse are separated, you are still deemed married under the eyes of the law and you do not have the right to remarry. Generally speaking, a separation does not affect the financial responsibilities between you and your spouse before your divorce is final.

 

There are three types of separation – temporary separation, permanent separation, and legal separation.  A temporary separation is when you and your spouse live apart to decide whether or not you want to get a divorce.  A temporary separation may or may not affect your property rights, depending on the length of the separation and the parties’ activities during the separation.  A permanent separation is when you and your spouse live apart with the intention to divorce.  During a permanent separation, the property and income you acquire and debts you incur after your separation date are typically deemed your separate property. Your legal relationship status is not affected by a temporary or permanent separation.  In the eyes of the law, you are still legally married.   A legal separation on the other hand, changes your legal relationship status from married to legally separated.  Thus with a legal separation, your legal relationship status is different from being married and divorced.

 

In order to obtain a legal separation, a court action will need to be initiated and you must have an order from a judge or chancellor declaring you legally separated.  During a legal separation, spousal support, alimony, child custody, child support, child visitation, distribution of marital debts, and distribution of marital assets are all addressed and decided upon.  However, upon being granted a final decree of legal separation, you and your spouse are still deemed married.  This means that you and your ex-spouse will not be free to date and marry again.

 

Why consider a temporary separation? 

A temporary separation is usually ideal if you and your spouse need some time apart and you are unsure if you want to get a divorce or reconcile.  If you and your spouse wish to have a temporary separation, it is extremely important that you contact our office so that we can assist you with drafting and executing a separation agreement to address the numerous issues that are sure to come up.  For example, you and your spouse will need to decide whether or not you will continue to share your joint bank account and credit cards, how you will budget your spending, who will reside in the marital home, and how your expenses will be shared.  If you and your spouse have children together, you will also need to address when each of you will spend time with them and how you will provide for them financially.

 

Deciding on a Permanent Separation

During a temporary separation, it is very important that you and your spouse take your time to decide whether or not you want to divorce or reconcile.  This would be the ideal time to pursue marriage and family counseling along with individual therapy.  If during your trial separation you and your spouse decide that you are not going to reconcile, then your trial separation will turn into a permanent separation.  When you and your spouse live apart without intending to reconcile, but you are not legally separated or divorced, you are considered to be permanently separated. 

 

In Tennessee, when you and your spouse decide to live separate and apart without any intention of reconciliation, then the property rights between you and your spouse are affected. If you and your spouse do not intend to get back together, then assets and debts acquired during the separation typically will be distributed only to the spouse who acquired them.  Thus, once you and your spouse permanently separate, you are unlikely to be held responsible for any debt your spouse incurs, and your spouse is unlikely to be held responsible for any debt you incur. Please note that this does not apply to joint debts, as a divorce, separation, or annulment does not affect the ability of a creditor to take action against you to recover a debt that is in your name.  Once you and your spouse permanently separate, you will likely not be entitled to any share of property or income that your spouse receives and your spouse will likely not be entitled to any share of property or income that you receive.  Because a permanent separation has the ability to affect how your assets and debts are divided, the date of separation is sometimes hotly contested during divorce proceedings.

 

An example is your spouse leaving during a heated argument and sleeping on his/her parent’s sofa for a month; however, you and your spouse did not discuss divorce for a month and neither of you intended to divorce before then. Now let’s imagine that you received a sizeable bonus from your job during that month. In this particular example, your date of separation is questionable.  

 

If your date of separation was the date that your spouse left the house to sleep on his/her parent’s sofa, then your bonus will liekly not be deemed marital property, as you received it after your date of separation.  However, if your date of separation is the date you and your spouse actually discussed divorce, then your bonus will likely be deemed marital property and be subject to being equitably distributed between you and your spouse, as you received it prior to you date of separation.   In this particular situation your spouse will likely argue that your date of separation was when you actually discussed divorce and request that your bonus be equitably distributed among you both. 

 

Thus, discussing the terms of your separation with your spouse as soon as possible and executing a separation agreement can save you lots of money and reduce your stress in the long run. Unlike a legal separation in which there is a court order, nothing is filed with the court and spousal support, alimony, child custody, child support, child visitation, distribution of marital debts, and distribution of marital assets are not decided upon by a judge.  However these things are typically decide upon between the parties so that each spouse can know what to expect moving forward and provide stability for their minor children.  Having a good separation agreement in place helps ensure that you, your children, and your finances are protected.

 

Deciding on a legal separation

In Tennessee, you can seek to obtain a legal separation by filing a Complaint for Legal Separation in the Chancery or Circuit Court.  When you are legally separated, you have the right to live apart from your spouse; however, you do not have the right to date or remarry.  During a legal separation proceeding spousal support, alimony, child custody, child support, child visitation, distribution of marital debts, and distribution of marital assets are addressed and decided upon by the parties or the court, similar to a divorce proceeding.  

 

Some people tend to choose to pursue a legal separation due to their desire to honor their religious beliefs, maintain health insurance coverage, keep their family together legally for the sake of the children, or their simple dislike of divorce despite their desire to live separately and apart.  If you are considering pursuing a legal separation so that a spouse can maintain their health insurance coverage, you will need to check with your insurance company to ensure that legally separated spouses are covered prior to making your decision.  This is because some health insurance plans view a legal separation similar to divorce and will terminate a spouse’s benefits upon the parties’ legal separation.  It is also important to note that some health insurance plans will allow the ex-spouse of an employee to maintain health insurance coverage as long as the divorce or legal separation decree states that the employee spouse is required to maintain health insurance coverage for the non-employee ex-spouse. 

 

Although legal separation is possible, I do not generally recommend it.  With a legal separation you are still married for most purposes, which means you cannot date.  After you and your spouse have been legally seperated for 2 years, either spouse can petition the court for a divorce.  Thus, if you opt for a legal separation, you may still end up divorced, and instead of paying for one lawsuit, you may pay for two. 

 

If you are not ready for a divorce but you want to talk things over with someone, I recommend counseling; and I will be glad to recommend some counselors I trust.  Please do not attempt to use a “trial separation” as a substitute for effective marriage counseling.  If you want the marriage to work, you will probably need counseling.  If you do not want a divorce, counseling is a good way to avoid it and prepare yourself if you must go through with it.

 

Reconciliation

Reconciliation is the renewal of amicable relations between two persons who had been at enmity or variance.  Resuming sexual relations with your spouse can be seen as evidence of reconciliation.  Reconciliation typically implies forgiveness of injuries on one or both sides.  It is important to note that during divorce, reconciliation is often seen as condemnation.  Condemnation is a conditional remission or forgiveness, by one of the married parties, of a matrimonial offense committed by the other, and which would constitute a cause of divorce; the condition being that the offense shall not be repeated.

 

Thus if you and your spouse reconcile after there are fault for grounds for divorce met,  by reconciling you and your spouse are waiving the grounds for divorce and beginning anew as if the fault for divorce had not occurred.  This is great if your reconciliation is successful. However, if your reconciliation is not successful, you may inadvertently waive your grounds for divorce, which can put you at a disadvantage strategically. If you are not the at-fault spouse and are considering reconciling with your spouse, I strongly suggest that you enter into a reconciliation agreement with your spouse to preserve your grounds for divorce in the event that your reconciliation is not successful.  If you have already filed a Complaint for Divorce, then you will need to notify the court and get the court’s permission (called an Order of Reconciliation) prior to engaging in physical relations with your spouse.  Also, please note that reconciliation after a divorce may also have tax consequences you need to explore with your tax professional.

 

There are times when divorce or separation may seem like the only solution to problems in a marriage; however, it is often not. Sometimes it takes the start of a divorce to motivate people to make an effort to save a once cherished relationship. However, this does not mean that you should threaten your spouse with a divorce in order to get them to comply with your wishes or win an argument.  After all, you want your spouse to love and respect you because they love you, and not because they are in fear of you leaving.

 

 Don't be embarrassed to consider reconciliation.  If there is any possibly that you and your spouse are able to reconcile, then I strongly suggest exploring the possibility.   I believe it is important to exhaust all possibilities of saving a marriage before finally deciding to end it.  If you are considering trying to reconcile, please schedule a divorce planning session with me so that we can talk about the effect that your reconciliation efforts will have on your divorce if reconciliation fails.  During the divorce planning session, I will provide you with a game plan that you can implement to help give you peace of mind in knowing that you, your children, and your finances will be protected in the event that reconciliation is unsuccessful. 

 

While trying to save your marriage, I recommend that you and your spouse give marriage and individual counseling a try.  Although I take the emotional and psychological effects of divorce into consideration in my divorce practice, I am not a trained therapist; however, I will be happy to recommend a therapist if you need one.

 

Special Considerations

When contemplating divorce, it is important not to make a hasty decision.  Choosing to divorce or separate from your spouse is an important life changing decision that should not be made in a moment of fury or anguish. It is also important to note that you shouldn’t make a quick decision to leave the marital home as it can be grounds for a fault divorce based on abandonment.  This is typically the case if one spouse initiated the separation and the other spouse was not in agreement.  Please keep in mind that in Tennessee fault is a factor for the determination of alimony. Fault can also be taken into consideration when a court is determining child custody as the other spouse can argue that the best interests of your children are not the number one priority of the spouse at fault. Under Tennessee law, fault grounds are not considered in the division of marital property; however, it is important to note that the judges are human and every human has biases.  Thus, a judge may be more likely to distribute more marital assets to a spouse that is not at fault than to a spouse who is at fault.