Annulment and Separation FAQ

Learn about these options instead of -- or before -- divorce.

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How does an annulment differ from a divorce?

Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.

Grounds for annulment vary slightly from state to state. Generally, they may be obtained for one of the following reasons:

  • Misrepresentation or fraud -- for example, a spouse lied about the capacity to have children, stated that she had reached the age of consent, or failed to say that she was still married to someone else.
  • Concealment -- for example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency.
  • Refusal or inability to consummate the marriage -- that is, refusal or inability of a spouse to have sexual intercourse with the other spouse.
  • Misunderstanding -- for example, one person wanted children and the other did not.
These are the grounds for civil annulments. Within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce, so that one or both people may remarry, within the Church or anywhere else, and have the second union recognized by the Church.

Most annulments take place after a marriage of a very short duration -- a few weeks or months -- so there are usually no assets or debts to divide, or children for whom custody, visitation, and child support are a concern. When a long-term marriage is annulled, however, most states have provisions for dividing property and debts, as well as determining custody, visitation, child support, and alimony. Children of an annulled marriage are not considered illegitimate.

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When are married people considered separated?

Many people are confused about what is meant by "separated" -- and it's no wonder, given that there are four different kinds of separations:

  • Trial separation. When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if they don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered jointly owned. This type of separation is usually not legally recognized, but is instead a specific period in a couple's relationship.

  • Living apart. Spouses who no longer reside in the same dwelling are said to be living apart. In some states, living apart without intending to reunite changes the spouses' property rights. For example, some states consider property accumulated and debts incurred while living apart to be the separate property or debt of the person who accumulated or incurred it. In other states, property is joint unless and until a divorce complaint is filed in court.

  • Permanent separation. When a couple decides to permanently split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple's decision to permanently separate may not be considered a legal one unless one party takes the other to court for support or custody pending a divorce action. This then leads to a state of legal separation.

  • Legal separation. A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody, and visitation -- but does not grant a divorce. The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support). In some states, separate maintenance can be obtained with a motion pendente lite, or pending the litigation. Usually a lawyer files this motion. These motions set the tone for what may be awarded in a future divorce judgement.

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