Termination of a Marriage
Knowledge of how a marriage is formed is essential to understanding how a marriage is dissolved. There are two ways for the parties to extricate themselves from the marriage contract: annulment and divorce. Both are legal proceedings and both require an order of the court.
Annulment
An action for annulment is not, strictly speaking, an action for divorce of marriage. When the court order is issued, it will not dissolve an existing marriage. Rather, an order for annulment is a declaration that the marriage never existed.
ssential
It is a popular misconception that an annulment may not be granted if the marriage has been consummated. In reality, most statutes allow an annulment if the parties do not live together as husband and wife after the grounds for the annulment are discovered.
A marriage does not exist if the marriage contract is never formed. Like void marriages, marriages subject to annulment have a defect that can prevent the formation of the marriage contract. Unlike void marriages, the impediment to marriage can be removed. The party seeking the annulment must usually allege that the other party lacked the mental capacity to enter into the marriage contract, lacked the physical capacity to consummate the marriage, or was underage.
Divorce
All fifty states allow no-fault divorce. Under a no-fault divorce, none of the traditional grounds for divorce (adultery, desertion, cruelty, or abuse) apply. There are no defenses to a no-fault divorce. The court is obligated to grant a divorce if it is demonstrated that the parties have irreconcilable differences, have lived separate and apart for a specific period of time, or that the parties are incompatible.
One of the parties must petition for divorce. The petition typically includes the names and addresses of the parties and their children, information about the date and place of the marriage, and the reasons for the divorce. As in other types of litigation, the petition must be served on the other spouse. If an answer to the petition is not filed, the divorce will be automatically granted.
While the divorce petition is pending, the court has the authority to make temporary orders on the issues in the petition. A temporary order can set custody and visitation schedules, payment of maintenance and child support, and other matters. The temporary order is usually in force until a final decree is entered.
Few divorce proceedings go to trial. Both courts and legal practitioners encourage parties to settle through mediation or negotiation. If a settlement is reached, a written agreement is prepared and presented to the court. If there is no settlement, a trial will decide issues of property distribution, child custody, child support, and spousal maintenance.
