Divorce Legal Overview

Divorce Legal Overview

What does it mean legally to be married?
Marriage is a continually evolving social institution in which two individuals unite--for better or for worse. For many people this legal union has religious significance. In the eyes of the law, and as defined by most states, marriage is a civil contract between two individuals.

Marital status creates various legal rights, obligations and liabilities. The laws of each individual state determine the specific financial and personal duties a married couple will have during their marriage and after separation or divorce. In some states, marriage will create ownership rights in property obtained both during and prior to the marriage.

What does it mean to get divorced?
Divorce is the legal termination of a couple's marriage. Marital status can only be terminated by a court of law. In some states divorce is referred to as "dissolution" or "dissolution of marriage." In a divorce, a court declares the marriage contract broken.

Traditionally it has not been easy to get a divorce. The petitioner for a divorce was required to establish grounds for obtaining one. Typical grounds for a divorce were adultery, cruelty, abandonment, insanity or fraud.

Today, all states have what are commonly called no-fault divorces, which generally allow spouses who no longer wish to remain married to get a divorce at will. Depending on the state in which you live, grounds for a no-fault divorce may be referred to as irreconcilable differences, incompatibility or irrevocable breakdown.

Even in a no-fault divorce, however, there may be statutory requirements such as residing separately for a certain length of time.

What is an annulment?
An annulment is a legal procedure that dissolves a couple's marital status by establishing that a valid marriage never existed. State statute determines the grounds and procedures for invalidating a marriage. Couples can file for an annulment in the state in which either the husband or wife resides, in the state in which the marriage occurred, or when both the husband and wife appear before the court in an entirely unrelated state.

Before California adopted the first no-fault system of divorce in 1969, divorces were difficult to get because fault had to be proved. As such, courts construed annulment statutes liberally. Today it is relatively easy to get a divorce in most states, and the use of annulment as a means to end a marriage has declined.

Each state's individual annulment laws determine whether the following common grounds for an annulment are recognized:

• Fraud (i.e., a spouse may have lied about his or her ability to have children)
• Concealment (i.e., a spouse may have concealed his or her addiction to drugs or alcohol)
• Failure to consummate the marriage
• Bigamy
• Incest
• No age of consent
• Marriage under duress

What is a separation?
In the context of marital problems, the term "separation" is used in several different ways:

1. The physical separation of spouses living apart
2. "Legal separation," recognized by some states, where both spouses agree in writing on the terms of separation and a court accepts that agreement
3. The time-period for living apart that some states require to become eligible for a divorce