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.
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
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).
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.
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.
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.
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I, recently, consulted with Darin after my wife filed for divorce. He was referred to me by a friend whom I very much trust. Darin was the antithesis of the first two attorneys I consulted (who were matter-of-fact and had very little empathy about the fact that I was struggling emotionally with what was transpiring). From the first few minutes of speaking with Darin, it was obvious that he was very knowledgeable and skilled with divorce and family matters. While that was most important to me, the thing that made the difference was his calming, logical, and empathetic approach. He took the time to listen and empathize with me. He took the time to understand what I wanted to achieve through this process and laid out my options. After the consultation, I knew he would be my attorney if I had to pull the trigger. I, ultimately, didn’t have to engage Darin’s services due to a reconciliation with my wife. I hope I never have to go through that process again, however, if I do, I know beyond a shadow of a doubt who I will be hiring to represent me…Darin R. Colburn. Darin, thank you for caring and being more than an attorney.
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Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!
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Dave stayed with me while he pushed back and forth with Covid-19 and the delays with court. Once cited, the state basically decides that you’re guilty through the automatic suspension of your drivers license. Dave immediately took care of that problem and I never lost the privilege of driving. Dave took notes like crazy and was upfront about our uphill battle. I was also well aware that the plea deal that was given to us, was unacceptable and through Dave’s knowledge and experience I had put my trust in him to guide me to make the right decision on how to proceed. With Dave’s guidance I had decided that we needed to fight for something better than what the prosecutor was offering and Dave was 100 percent behind me on that decision. We knew the risks, be we also knew we had very little to lose based on the prosecutions stance. We decided to go to trial… Watching the prosecution and then watching Dave was night and day!! It was clear to the jury that the prosecution didn’t have their facts straight and were not addressing the facts that they could not address…There was a lot at stake for my personal life and my work life. I was found NOT GUILTY. Dave won the trial for me.
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I had an incident and was Given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now I am on the path to having my case fully dismissed. A couple things that really helped me through this process was that Tim did an amazing job at was answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future and as of right now they will be my first choice if I need a lawyer in the future.
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