These three words are sometimes used interchangeably, yet they all mean different things. Although all of these options terminate the marital relationship in one way or another, there are very distinct differences that will be explained below. One of the main differences is that an annulment expunges your marriage, it is as if it never happened. A divorce ends your marriage, but in the eyes of the law, it had a prior existence. A separation is not as final as an annulment or a divorce, as you are still legally married.
In order to get an annulment in New York you have to prove one of the following:
- Bigamy: one of the parties was still married to someone else at the time of the second marriage.
- Either Spouse was unable to have sexual intercourse at the time of the marriage.
- After marriage, either spouse became incurably insane for five years or more.
- The spouse is unable to understand the nature, effect and consequences of marriage because of mental incapacity.
- Spouse agreed to marry as a result of force or duress.
- The marriage was obtained by fraud. This is the most common ground used for annulment.
If you can prove either of the factors above, and an annulment is granted, it means that the marriage was not legally valid, in essence as if you were never married.
What is a legal separation? A legal separation is when you want to stop living with your spouse but follow certain living arrangements per agreement. This agreement constitutes a contract and a family court can enforce any violations of the agreement. Some people may opt for a legal separation if they are unsure whether they want to get divorced, they cannot afford a divorce, their religion does not allow them to get divorced or for a financial benefit, such as continued health insurance. A legal separation is not just moving out of your home; if you want to legally separate, then you need a separation agreement. This agreement can last as long as you want. The agreement should cover these issues, as applicable:
- Where will you live?
- Spousal support
- Custody of children
- Parental Access of the children – schedule
- Child support
- Who will pay for which bills?
- How property will be divided and cared for?
Legal separation can provide space and time for you to figure out if a divorce is what you really want. If after being legally separated from your spouse you decide that you want a divorce, you can ask the court for a conversion divorce. A conversion divorce is based on an existing separation agreement. In order to qualify for a conversion divorce, you and your spouse must have lived apart for at least one year, and followed the terms of your separation agreement, before filing a conversion divorce.
Last but not least, good old divorce. A divorce is ending a marriage by a court order. During a divorce proceeding, issues of child custody, division of assets, child support and spousal support, and other issues may be resolved by negotiation and a Stipulation of Settlement, or by a court order. There are two types of divorces: Uncontested and Contested. An Uncontested Divorce is when both you and your spouse want to get a divorce and agree about what will happen to your children, finances, your assets, etc. A Contested Divorce is when either you or your spouse disagree about wanting a divorce or about custody, finances, assets, etc.
Everyone is different; every situation is different; every family unit is different. Finding the route to take in your decision to end your marriage is a personal one. Having the right lawyer by your side will make a world of difference.
Experienced New York Divorce Lawyer
Whether you’re considering a separation, annulment or divorce, The Mandel Law Firm can help you through it. Our team at The Mandel Law Firm can help make sure that your interests are protected. Get in touch with our team today by calling 646-770-3868 or by sending us a secure message via our website.