BREAKDOWN OF THE KINDS OF DIFFERENT DIVORCES
To start the conversation about the different kinds of divorce, we must first understand the legal definition of MARRIAGE. Marriage is a legal contract. It is a contract obligating the parties to marry each other and financially support one another. Sometimes, one or both of the parties no longer desires to continue with this contract. This is where divorce is required to terminate the marriage. Just like the state creates and sanctifies the contract of marriage, the state (Family Court here represents the interests of the state) must end it.
DIVORCE is a legal proceeding where the plaintiff (the person filing first) asks the court to legally terminate the marriage. Divorce legally ends the marriage. The plaintiff can also ask the court for ancillary relief – everything else related to the marriage – custody and visitation of the kids, parenting plan, child support, alimony, ahd division of marital property. The main relief or what the parties ask for in a divorce is termination of marriage, all else is gravy and is called ancillary relief.
In contrast, ANNULMENT, does not terminate but CANCELS the marriage altogether and makes it invalid and void. More on this later.
There are two major ways how a divorce action can proceed. (1) Divorce can proceed where both parties agree to get divorced and are collaborative – called Uncontested or Collaborative Divorce. Here, there are two ways to go: (a) the parties sign a Stipulation or Settlement Agreement agreeing about the grounds and the terms of their divorce; or (b) the Defendant may choose to ignore the proceeding altogether and then the Plaintiff can just get whatever they ask the Court for in the divorce action.
When the Defendant does not appear in the divorce (submit to court specific paperwork that she is going to participate and objects to what Plaintiff is asking the court to do), that is a DEFAULT divorce. It’s a unilateral divorce where Plaintiff gets whatever she asks for because Defendant ignored the court action. Failing to make a legal appearance in the court action is called defaulting.
(2) Where one or both parties cannot agree on the GROUNDS and/or TERMS of the divorce and/or to even get divorced at all – that’s called Contested Divorce and results in parties’ having to ask the court to intervene and order them/tell them what to do inside the divorce action. Contested divorce always involves litigation – the court will have to make decisions instead of the parties.
In every state, the plaintiff must pick the GROUNDS or reasons for the legal termination of marriage.
1. No Fault Grounds for divorce do not require the parties to show any wrongdoing. The plaintiff does not have to submit any evidence that defendant wronged them in some way. The majority of the states have Irreconcilable Differences (sometimes called Irretrievable Differences) as the main grounds most people use as reason to terminate the marriage. It saves the parties a lot of time and effort since there is no need to demonstrate wrongdoing. It simply means the parties’ relationship fell apart.
Another No-Fault type of Divorce is when the parties sign a legal Separation Agreement and then get divorced on the terms listed in the Separation Agreement. In some states, signing the Separation Agreement is called “Limited Divorce.” Limited Divorce is not a true legal divorce since the parties continue to remain legally married while separated.
2. Fault-based grounds for Divorce require that Plaintiff prove that Defendant is guilty of some wrongdoing. These grounds all have to do with Defendant doing something wrong to Plaintiff, requiring an element of mental or physical cruelty or failure to do something required by the marriage contract, and are collectively called “At Fault” Divorce. At Fault grounds in different states are as follows:
a. Cruel and Inhuman Treatment or Abuse. In NJ this is called Extreme Cruelty. Sometimes this is referred to as Domestic Violence.
b. Sexual harassment by defendant.
c. Abandonment or desertion. In NY – these are separated into (i) physical abandonment and (ii) constructive abandonment [failure to have sexual relations].
Fault-based grounds create conflict and usually result in Contested divorce or litigation.
The problem with Fault-based grounds is that they ”usually include mental cruelty, but true mental cruelty has a psychological component that can make it very difficult for the abused spouse to articulate that abuse. More to the point, the abused spouse may be terrified to describe the relationship on paper and testify about it in a court. And of course, a controlling partner will always choose the path of most resistance to whatever it is that the other spouse wants.” “No-fault divorce? It’s about time”. salon.com. 18 June 2010.
Annulment cancels the marriage legally, it makes the marriage null and void, declaring the marriage invalid from the inception, as if the legal act of marriage never happened. Annulment is retroactive.
A void marriage is a marriage that is legally invalid under the laws of the jurisdiction where the marriage was registered.
Grounds for Annulment typically include the following:
1. Fraud. Fraud means that Defendant deceived the Plaintiff in order to induce the Plaintiff to marry them.
2. Bigamy. When the defendant was already married to someone else legally. US laws do not recognize marriage to more than one person at a time. So, if your spouse turns out to have had their divorce to their prior spouse still unfinished at the time you married them – your marriage is void. We see a lot of this in our immigration practice – people lie about NOT being married, but in reality never got divorced legally from their home country marriage.
3. Mental incapacity. A person who does not have legal capacity and full appreciation of the act of marriage could not consent to marriage properly.
4. Marriage between close relatives. States typically prohibit marriages between siblings, parents and children, grandparents and grandchildren, and many restrict marriages between first cousins.
5. Duress. The marriage happened due to threat of force or violence.
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