THE BLOG

An Overview of the Legal Grounds for Annulment, Separation and Divorce

06/16/2015 11:25 am ET | Updated Jun 16, 2016

This comment provides a very brief and incomplete educational overview of the legal grounds for annulment, separation and divorce. It does not discuss child custody and support or property division issues. Always consult an experienced attorney, family therapist and advocacy group, as appropriate, in all family law matters.

Historically, in the English legal tradition, family law was governed by the officially sanctioned church and fell under Canon Law (laws and regulations made by Catholic and Anglican churches). It was not until the English Matrimonial Causes Act of 1857 that all English church authority was removed with marriage becoming purely contractual. Of course, the U.S. First Amendment's Establishment Clause prevented such religious authority from becoming secular law. Purely secular grounds for entering and ending marriage are comparatively recent developments.

Historically, children of a marriage that was not officially sanctioned could not inherit their parents' property. In this context England created the common law marriage. Many commentators state that common law marriage was abolished in England by the Marriage Act of 1753 since it required a license and ceremony. In any event, the 1753 legislation did not apply to English colonies and common law marriage was widely recognized. Today common law marriage is recognized in about ten U.S. states. However, there is no common law divorce. With numerous legal problems associated with common law marriage and readily available official ceremonial marriage, the trend is to abolish common law marriage. There can be no annulment, separation or divorce unless there is a lawful marriage or legally recognized civil union.

State statutes create the requirements for a valid common law (often called "informal") marriage. These typically are a present (not future) agreement to be married, living together as husband and wife and representing to others that they are married. Frequently no minimum time period is required. Occupying the same house does not necessarily create a common law marriage. Many states allow, but do not mandate, the common law marriage to be registered with the county clerk. A traditional problem is determining if there is a spouse who is entitled to death benefits resulting from a workplace accident. There is no common law divorce and a valid marriage may still exist after subsequent relationships.

In simplified overview, secular legislation originally loosely followed historic Canon Law. Since state legislation varies, have an experienced attorney determine the legal grounds and procedure for annulment, separation and divorce in your state.

An annulment essentially states that there never was a valid marriage. King Henry VIII had multiple annulments. Divorce, in contrast, ends a valid marriage.

The following are typical statutory grounds for a modern court granting an annulment, not all of which may be recognized in a particular state: fraud, duress or force, bigamy, underage, intoxication, mental incapacity, insanity, impotence, concealed divorce and too close a kinship (consanguinity). There are numerous procedural issues. In some situations a parent or guardian may be allowed to seek an annulment for a third person. Residency requirements vary. Some grounds for an annulment may be lost if too much time elapses from the date of the purported marriage. Some states even allow a jury trial to determine the facts. Children born during the relationship are typically treated like children in a divorce.

About eight U.S. states do not have legal separation statutes although nothing prevents partners from ceasing to live together. This legal separation process is different from the separation required as part of a divorce procedure. Typically the partners present a written separation agreement to the court and the court grants a "separation from bed and board" (a mensa et thor). Since the partners are still married, this procedure may meet religious objections to divorce or allow health insurance to continue for a seriously ill spouse. A court may award "separate maintenance" that is the functional equivalent or alimony and child support. A few states require proof of specific grounds such as cruelty or adultery. Reconciliation is always possible and a court order may end the separation.

Historically, adultery was the only ground for divorce. Over time statutes added additional grounds such as cruelty, abandonment (one or more years), conviction of a felony, living apart for a specified number of years (perhaps three), confinement in a mental hospital for a specified number of years (perhaps three) and domestic violence. The difficulty with specific grounds was that they had to be proven in court, so either one spouse could block the divorce from occurring or spouses could agree to commit perjury in stating that nonexistent grounds had occurred.

California was the first state to have no-fault divorce effective January 1, 1970. All states have some variation of no-fault divorce and about one third of the states have repealed their older fault-based grounds for divorce. Terminology varies with states using words such as "incompatibility", "insupportability," or "irreconcilable differences." A few states have separation based divorces as an option to both fault-based and no-fault divorce. As a reaction to no-fault divorce, several states allow marrying couples to create a "Covenant Marriage" with restricted grounds for divorce.

No-fault divorce just requires a spouse to essentially testify that the marriage has ended. There is no way to contest or prevent this form of divorce although an objecting spouse may be able to procedurally slow it down. The major difference between states is the length of residency required prior to filing for divorce, the mandatory separation period and any remaining waiting period before the divorce is final. The rationale for longer time periods is to encourage reconciliation.

States frequently require mandatory mediation, particularly with regard to child custody, in divorce cases. It is confidential, may be less adversarial and may be less expensive than courtroom proceedings. Another possibility is collaborative divorce with the parties agreeing to procedural matters, including confidentiality, in order to reach a non-adversarial resolution. A few states have enacted model legislation, the Uniform Collaborative Law Act.

In my opinion, love and hate both involve an emotional connection between individuals. The opposite of love or hate is indifference. Domestic violence calls are so dangerous for police officers in part because of the high levels of emotion that are easily redirected toward an outsider who intervenes in the complex love-hate interaction that is occurring.

Fear of losing power or control as well as an attempt to be perceived as the innocent spouse also have a strong emotional component. Protective orders or restraining orders will not stop an individual who is determined to be violent. One may have to hide or flee to avoid injury. Additionally, a lawsuit against the police or other public officials for failing to prevent violence, with or without a restraining order, is unlikely to be successful. Finally, the battered spouse syndrome with its learned helplessness and related psychological components is a tragic situation.

This comment provides a very brief and incomplete educational overview of a complex legal topic and is not intended to provide legal advice. Always consult an experienced attorney, family therapist and advocacy group, as appropriate, in specific situations.