The Three Different Legal Ways to End a Marriage
Updated 6/30/21
The decision to end a marriage is tremendously difficult and while there may be rough times ahead we are here to provide support. Sometimes healthy marriages deteriorate and turn into bad marriages, whether there are financial reasons or abuse issues. We want to let you know that you have options and not all marriages must end in a divorce. Just as there are different approaches and strategies involved in working through a divorce, there are several different ways to legally end a marriage. Contrary to popular belief, divorce is not the only way to legally end it. One of the most important questions to ask a San Diego divorce attorney at the outset is what path is best for you. There are specific requirements that must be met for each. Let's take a look.
It is important to note that there are different laws and divorce forms depending on the state you are in, so you want o find a lawyer with experience in your area. As San Diego-based divorce lawyers, we'll be focusing on the laws and requirements that apply in California.
Three Best Legal Ways to End a Marriage
1. DIVORCE
The most common or well-known end to a marriage is a divorce, also known as dissolution of marriage. California is a “no-fault” divorce state, which means that neither spouse has to prove that the other has done anything wrong or provide legal reasons. There's no need to prove that your circumstances warrant a divorce beyond what is referred to as irreconcilable differences. More simply put, you and your spouse do not get along.
Either spouse can seek a dissolution of marriage without the consent of the other spouse. While it may seem harsh, the fact that one spouse does not want a divorce is irrelevant to the proceeding. If the “non-filing” spouse refuses to participate, they could be removed from the proceedings by way of a default (i.e. When a party fails to respond to a divorce petition within the time proscribed by law, the party is “in default.” One requirement that does need to be met is residency requirements - you or your spouse need to have lived in the state of California for at least the last six months. Further, you or your spouse must have lived in the county in which you file for divorce for at least the last three months.
California also allows for a method of ending a marriage known as a “summary dissolution of marriage”, which is essentially a simplified divorce process. Not everyone qualifies for summary dissolution of marriage, so it's important to determine whether you and your spouse meet the requirements. Couples that wish to file a summary dissolution of marriage can only do so if they agree on all issues have a signed agreement between the couple regarding the division of property (including cars) and debts. Further, neither spouse may request spousal support and they must have been married for less than five years from the date of marriage to their date of separation. The couple cannot have any children together and cannot be expecting any children - during the marriage or prior. As for debt, the couple cannot owe more than $6,000 that was acquired during the marriage.
Determining the value of a property, both “community” and separate, is very important before filing a request for a summary dissolution of marriage. Similar to the limit of the amount of debt, there are limits on the value of assets/property. Community property is basically any property that a married couple owns together that was acquired during the marriage. Separate property is property acquired by a spouse before marriage, after marriage, by gift, or through an inheritance. In order to file for summary dissolution of marriage, there are limits for each type of property. It's important to note that cars do not count in these limits.
In addition, a married couple cannot own or rent any land or buildings. The couple may rent their current place of residence, but they cannot have a one-year lease or an option to buy. It's normal for couples to have lots of questions to ask a divorce attorney when they're trying to determine whether they can pursue a summary dissolution of marriage.
Without the above requirements being satisfied, the couple will need to move forward with a “regular” divorce, and the court will have to determine how the debt and assets are to be divided.
If you have any questions about a San Diego divorce or dissolution of marriage, please contact our divorce experts for a free consultation
2. LEGAL SEPARATION
Sometimes a San Diego couple may determine that a legal separation is the best option for them. Unlike divorce, a legal separation does not end the marriage or, more technically, the marital status of a couple. A legal separation works similar to divorce when it comes to dividing property and setting support, but the couple does not become “single” again. Because of this, a couple that is legally separated cannot enter into a new marriage or domestic partnership unless and until they pursue a divorce or summary dissolution of marriage. However, legal separations still result in a division of their finances (including bank accounts), property, and other assets, and set orders related to custody of the children. Legal separation also will deal with child/spousal support, and how debts will be divided.
A legal separation may be a good option for a couple that does not have any intention to enter into a marriage or partnership with others but still wishes to divide their assets and part ways. There are instances where a couple has religious or personal beliefs that do not allow for divorce. If a couple doesn't meet the minimum residency requirements for divorce but does not wish to wait to meet those residency requirements before separating, a legal separation is a great way to avoid delaying that process. Usually, legally separated couples can later change to a divorce, assuming the requirements are met.
With rising healthcare costs, it's becoming more and more common for couples to go their separate ways but remain legally married in order to qualify for a specific health insurance plan, legal separation may be the answer. In many cases, a legal separation does not affect a couple's ability to remain on their spouse's health insurance policy (Note: Not all health plans allow for this even with a legal separation, so it is important to do your homework before counting on this option).
If you are legally separated or have questions about how to become legally separated, our San Diego divorce experts can help. Book a free consultation.
3. ANNULMENT
The last option for ending a marriage is the rarest, as there are very few cases that qualify. Annulment is very different from the other ways of ending a marriage. Annulment is a process by which it is determined that the marriage was never legally valid from the beginning. A marriage that is deemed by a court as “void” or “voidable” would qualify for an annulment. Irreconcilable differences have nothing to do with this. There are very limited circumstances where a couple may seek an annulment.
A marriage will be declared void and will be annulled if it is:
Incestuous (between close blood relatives), or
Bigamous (where a spouse is already married to, or in a domestic partnership with, someone else).
A marriage may voidable by the court if:
Age – if either party in the marriage was under the age of 18 at the time of marriage, the marriage could be determined to be invalid and, as a consequence, annulled.
Incapacity or Fraud/Force – If either party entering the marriage can prove they or the other party was mentally or physically incapacitated at the time of marriage, or they were induced into marriage by fraud or force.
Absence of Spouse – Either party was already legally married or in a registered domestic partnership, but the new marriage or domestic partnership took place after the former spouse or domestic partner was absent for 5 years and not known to be living or generally thought to be dead.
A spouse seeking an annulment on any of the above grounds has the burden to prove the facts and circumstances exist or existed by a preponderance of the evidence. This is not always an easy task, especially without the assistance of an experienced family law attorney!
To learn more about the differences between legal separation, dissolution of marriage, and annulment, see the California Courts page on Options to End Marriage or Domestic Partnership.
As always, if you have any questions about your unique situation and would like legal advice, please contact our divorce experts for a complimentary consultation.
