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- Legal Separation vs Divorce
- What is an Annulment?
- Parental Rights & Obligations
- Types of Annulments
- Divorce Lawyers
There are three different ways to terminate a marriage in Arizona and the process for each is very similar, but the consequences are not, which is why a consultation with an experienced lawyer is always recommended before you proceed.
The three ways to end a marital community are Legal Separation, Divorce, and Annulment. The same court has the authority to grant a legal separation, a divorce, or an annulment.
As with all legal matters, it is important to fully understand all your legal options and the pros and cons of whether to seek a divorce, a legal separation, or a civil annulment. An experienced family law attorney at Colburn Hintze Maletta can walk you through this process.
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Legal Separation vs Divorce vs Annulment in Arizona
Legal Separation vs Divorce
Where a divorce terminates a valid marriage and is probably the action that is most easily understood by the public, a legal separation is slightly different in one very specific and important way; in a legal separation, the parties cannot marry other people because they are still legally married to each other.
In the process of a legal separation, custody matters can be decided, property and debts can be divided, and child support and spousal maintenance can be determined. After all of this is done a Separation Agreement is either entered into by the parties or decided by a Judge. After a legal separation takes place any property or debt that either party acquires becomes their sole and separate property or obligation.
After a legal separation takes place any property or debt that either party acquires becomes their sole and separate property or obligation.
There are various reasons that people may choose a Legal Separation over a conventional divorce. Some of these are the ability to keep a spouse on an insurance plan (this may especially be relevant if one spouse is close to reaching the age to receive Medicare or social security), there is a chance of reconciliation, or if the parties simply wish to live separately but have a moral or religious objection to divorce.
It is important to understand that even if one party files for a Legal Separation, the other party may elect to have the legal action converted to one of Divorce and it will automatically convert to a Divorce proceeding. Therefore, if the Parties wish to proceed with a Legal Separation they both must agree to this option.
What is an Annulment?
The final way to end a marital community is by annulment. In the case of an annulment, the court declares that the marriage never existed and makes it a matter of record. It returns the parties to their previous single status as if the marriage never happened. This process is more complicated, and a lawyer can walk you through the process and help determine if there is a legal basis for seeking an annulment.
Despite having the same name, a civil annulment has nothing to do with a religious annulment.
Despite having the same name, a civil annulment has nothing to do with a religious annulment. The two are granted for very different reasons and the proof and documentation required may also be very different. The fact that you obtain a divorce rather than a civil annulment, may not adversely affect your ability to seek a religious annulment.
If you are considering seeking a religious annulment, you will want to first speak to your Priest or other religious leaders to determine whether a civil annulment is a requirement in order to later seek a religious annulment.
Parental Rights and Obligations
Finally, it is important to know that whether a marriage is annulled or severed by divorce or legal separation, the parental rights and obligations of either parent to any children of that union are not diminished or changed in any way.
There is no custody advantage to annulling a marriage as opposed to terminating it through a divorce or legal separation.
Types of Marriage Annulment in Arizona
There are two different types of marriages that can be annulled. The first is what is called a “void” marriage. This is a marriage that is not allowed by law from the moment it was entered into and therefore was never a valid marriage. The second type of marriage that may be annulled is what is called a “voidable” marriage.
A “voidable” marriage is a marriage which, depending on specific facts, there may be grounds for the court to declare that the marriage was invalid.
It will be the burden of the complaining party to prove by clear and convincing evidence that such grounds exist.
Even if the marriage is annulled, a court will still have to equitably divide any property and debts that were acquired by the parties during the period of time that the parties were living as if they had a valid marriage. However, by obtaining an annulment rather than a divorce it is possible that a person who was a “spouse” in the now invalid marriage could lose certain rights, such as the right to spousal maintenance, right to a portion of a pension or retirement funds of other such property interest.
Before you elect to seek a civil annulment, you will want to consult with an experienced family law attorney.
Void Marriages That Are Always Invalid
Incestuous Marriage
This is defined as a marriage between a parent and a child, a grandparent and a grandchild, a brother and sister of either ½ or full blood, an aunt and a nephew, an uncle and a niece, and first cousins (there are some exceptions for this last category that an attorney can explain to you).
Bigamy
If someone marries before a previous marriage is legally terminated any subsequent marriage is void. A person who knowingly commits bigamy is also committing a class 5 felony in Arizona.
Underage Marriage without Consent
No one under the age of 16 may be legally married in the state of Arizona. A minor over the age of 16 may only marry if they have parental consent and if the prospective spouse is no more than three years older than the minor. If they have not obtained parental consent, then the marriage is void.
Voidable Marriages May Not Be Valid – Depends On The Facts
There is strong public policy in upholding marriages as valid and because of that, the facts being alleged by the complaining party in an annulment proceeding must be proven by clear and convincing evidence before the Court will find it voidable and grant an annulment Fraud.
If a person was untruthful or intentionally misrepresented facts or information for the specific purpose of persuading or deceiving someone into marriage then it is possible that the marriage could be annulled.
The untruth or lie must be something of such importance that if the complaining party had known of it at the time of the marriage they would not have entered into the marriage.
Voluntary Consent
Entering into a marriage is similar to entering into a contract. The people entering into either must do so voluntarily, without force or coercion, and must have the mental capacity to do so. If a party to marriage only agrees to it because of a threat of violence to themselves or to others, then that is not voluntary, and it may be grounds for an annulment.
Similarly, if a person lacks the mental capacity due to age, disease, intoxication, mental illness, or insanity, such that they could not enter into a contract, they also may not have been able to knowingly consent to the marriage and it may be subject to annulment.
However, just because someone may have a mental illness, or suffer from some other ailment or impairment doesn’t mean that the annulment will be automatic.
The burden will be on the complaining party to prove that at the moment of the marriage that person was not lucid and was unable to fully understand the significance of the marriage contract they were about to enter into.
Impotency
Having sexual relations with your spouse is not a requirement for a marriage to be deemed valid. However, impotency may be grounds for an annulment if it can be proven that it is incurable and permanent and that it existed at the time of the marriage and was either not disclosed or discovered until afterwards. Once again, the facts will be important here as to whether having known about the impotency at the time of the marriage the complaining party would not have entered into the marriage.
Divorce Lawyers at Colburn Hintze Maletta
As with all legal matters it is important to fully understand all your legal options and the pros and cons of whether to seek a divorce, a legal separation, or a civil annulment. An experienced family law attorney at Colburn Hintze Maletta PLLC can walk you through this process.
Attorney Darin Colburn has experienced first-hand just how difficult going through a family law matter such as divorce is when his parents divorced when he was 6 years old. Twenty years later, he has devoted his entire legal career to helping those facing similar issues. Darin attended the University of Arizona and graduated Cum Laude from the Eller College of Management. Darin is an experienced trial attorney that excels in high-net-worth divorce, complex business valuations, and messy child custody disputes.
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