Divorce Myths: The differences bewteen an annulment, legal separation, and a divorce
As a divorce lawyer practicing in Portland, Oregon, one common myth I hear is that annulments offer substantially different relief than divorces. Another version of the myth is that legal separations offer substantially different relief than divorces or annulments. The purpose of this post is to explain the basis for legal separations, annulments, and divorces, and to explain the relief each offers. The myth is that they are all very different. The reality is that except for a few key points, they are almost the same.
Annulments, legal separations, and divorces are more similar than different. The differences can be categorized by (1) the legal standard to obtain them, and (2) the relief available.
The legal standard to get a divorce or an unlimited separation is defined in ORS 107.025 which provides that “A judgment for the dissolution of a marriage or a permanent or unlimited separation may be rendered when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage.” In English, the marriage is broken and can’t be fixed.
The court can give you a “legal separation” if irreconcilable differences between the parties have caused a temporary or unlimited breakdown of the marriage; and the parties file an agreement suspending for a year or more their obligation to live together as husband and wife, and the court finds such agreement to be just and equitable; or irreconcilable differences exist between the parties and the continuation of their status as married persons preserves or protects legal, financial, social or religious interest. In English, if you have a marital problem, and want to suspend your marriage for a year, you can. If you have a marital problem, but need to remain married because you are religious, need your spouse’s health insurance, need to protect a legal interest, or don’t want to hold yourself out as divorced, you can get a legal separation.
The court can give you an “annulment,” or a divorce if you don’t want an annulment, when “either party to the marriage was incapable of making such contract or consenting thereto for want of legal age or sufficient understanding; (2) When the consent of either party was obtained by force or fraud.” ORS 107.015. Per ORS106.020, the court can also grant an annulment when “either party thereto had a wife or husband living at the time of such marriage.” or “when the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void.”
The relief offered by each is more similar than different. ORS 107.105 states what the court can do in all three types of cases. In annulments, disillusions, and separations, the court can make provisions for:
Temporary orders per ORS 107.095 for:
- attorney fees
- child and spousal support
- parenting time
- changing the kids routine
- awarding a party exclusive possession of a residence
Final orders per ORS 107.105 for:
- Custody of all children of the marriage.
- Parenting time for all children of the marriage.
- Child support.
- Transitional, compensatory, and maintenance spousal support.
- Division of real property.
- Division of personal property.
- Creation of trusts for children.
- Creation of trusts and appointment of trustees for the parties to manage property.
- Restore a former name.
- Continue a money award from a limited judgment.
- Award attorney fees and costs.
What are the differences between an annulment, legal separation, or divorce? If your marriage is annulled, it is as if it never happened. Per ORS 107.005, in an annulment case, the court can declare a marriage valid, void from the beginning, or void from the time of judgment. If you get a legal separation, you are still married, until you convert your separation into a divorce. An important side-note is that you can file for a legal separation without meeting the 6 month residency requirement. If you need immediate relief, it is a great option. In a divorce, the marriage is terminated when the judgment is entered.
What does this all mean? Annulments, legal separations, and divorces are much more similar than different. You can get virtually identical relief in all three, but there are subtle differences. Talk to an experienced family law attorney to see if the differences between the three may help you in your case.