Most clients come in to see a “divorce” attorney. You will realize that only a very small part of the case is the “divorce” and most of the case is fighting over the assets, debts, children, and other financial issues.
Additionally, divorce is not the only option, though in most cases it is the option chosen.
In a divorce (dissolution), legal separation, or annulment case, the Court must enter orders as to all other issues regarding assets, debts, children, and financial issues, as well as changing the name of either party and making jurisdictional findings. In this respect, there is very little difference between a divorce, legal separation, or annulment.
Some client’s initially want a legal separation as they feel it may be simpler, less expensive, or less official. It is important to understand that the work necessary and costs to obtain a divorce, legal separation, and annulment are all very similar.
Annulments are very unusual, though they have their place and should be considered. An annulment is a legal declaration that the marriage never occurred (or that it was invalid). We call this a “legal fiction,” but judges and lawyers have had their minds twisted by law school and we readily accept that if a piece of paper with ink properly placed by a judge says it didn’t happen, then it didn’t happen.
To get an annulment, one party must show that the marriage was null and void. I have been involved in annulments in which first cousins (who cannot legally marry in Arizona) had a marriage annulled, and in cases where a party was not properly divorced from a prior spouse before the marriage. Other annulments are based upon fraud or misrepresentation. These are a bit more difficult, and sometimes the additional cost of proving that the other person was at fault may not be worth the annulment. In Arizona, the Court can grant a divorce without the need by either party to prove fault. This simplifies the divorce process, and reduces the need for the parties to air their “dirty laundry” in a public forum. However, when trying to prove misrepresentation or fraud, many of the issues that Arizona’s “no fault” law attempts to keep out of court become relevant. These cases can be costly and contentious. I have had several of these cases that eventually the parties simply agreed to proceed by divorce, as neither party was willing to admit that they were the party that misrepresented or committed some fraudulent act.
If an annulment is granted, because of the legal fiction that the marriage never occurred, a party getting married later would be able to say that the subsequent marriage is their first marriage. For some people, this is important for religious, emotional, and various other reasons.
Legal separations differ from a divorce in that you are still technically married. Some clients desire a legal separation because they are not yet sure if they want the finality of a divorce. Some want to remain married for religious reasons, but want the financial separation of a legal separation. Certain financial factors also must be considered, including the ability of parties that are legally separated to file joint taxes (they are still married) and the ability to keep a spouse on medical insurance (once you are divorced, you cannot keep an ex-spouse on your medical insurance through employment. Imagine for a moment a spouse who works for a large corporation with fantastic medical insurance coverage, and a spouse who has very significant health problems and an inability to get insurance at an affordable rate. It may be beneficial to both parties to do a legal separation: The spouse with medical problems will get to continue to have better medical coverage, and the employed spouse may be able to pay less in spousal support based upon the lessened cost of medical insurance for the spouse with medical problems.
With a legal separation, both parties must agree to proceed forward with the legal separation. If either party requests that the case proceed forward as a divorce, the Court will treat the case as a divorce (it takes two people to be married, two people to agree to a legal separation, and only one person to get a divorce). The case can be converted from a legal separation to a divorce by filing a simple pleading with the court while the case is pending. If the case has been finalized as a legal separation, it can later be converted to a divorce by filing for divorce. This second case, however, should be simpler as all of the assets and debts, children related issues, and financial issues should have been resolved at the time of the legal separation.
Published 2014, Davis Miles McGuire Gardner PLLC Law Firm, Tempe, AZ. davismiles.com