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Annulment & Legal Separation
What is the Difference Between an Annulment and Divorce?
Like a divorce (marriage dissolution), an annulment is a court process that ends a marriage. But, an annulment treats the marriage as though it never happened.
MN Statutes §§ 518.02 - 518.05 are the laws that control annulments and they say that a marriage may be annulled if:
A) One party was not able to give their voluntary consent to the marriage at the time of the marriage ceremony because:
1. One party has a mental illness, insanity, mental incapacity and the other party did not know about the mental illness, insanity or mental incapacity at the time of the marriage ceremony;OR
2. One party was under the influence of alcohol, drugs or other “incapacitating” substance at the time of the marriage ceremony; OR
3. Consent was obtained by force or fraud.
B) One party is not able to “consummate” the marriage with sexual intercourse and the other party did not know this at the time of the marriage ceremony.
C) One of the parties was under the legal age for marriage. The legal age for marriage in Minnesota is age 18, or age 16 or 17 only with the consent of the parents, a guardian, or the court and approval of the application for a marriage license by a Juvenile Court Judge.(See MN Statutes § 517.02.)
NOTE: Whether or not the husband and wife voluntarily lived together after the ceremony, and whether one party kept living with the other party after learning about the incapacity may affect the annulment decision.
The Court does not have forms for annulment. If you believe you qualify for an annulment, you should talk to a lawyer to get legal advice immediately as there are time limits for filing for annulment. (See MN Statutes § 518.05.)
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Legal Separation vs. Divorce
QUESTION: My spouse and I are considering a separation, possibly a divorce. What is the difference between a legal separation and a divorce?
ANSWER : In your question, you have used three terms for changes in marriage status:
- legal separation
- divorce (also called “marriage dissolution”)
"Separation" simply means living apart. You do not need to file court papers to separate. The law does not require you to live with your spouse. However, separating from your spouse may affect your legal rights. It is best to talk to a lawyer before separating.
If you do separate, you will need to arrange for the care of the children, financial support, and payment of bills. A mediator or lawyer can help you and your spouse reach an agreement. A lawyer can advise you on your legal options, if an informal agreement is not possible.
"Legal Separation" is a major change in the status of your marriage. To get a legal separation you must serve and file a petition in District Court in the county where you or your spouse lives. It is a different process from the divorce process. In Minnesota, you do not have to be separated before you get divorced. The process to get a legal separation takes as long as a divorce, and may cost as much or more than a divorce. The courts do not publish forms for legal separation. Your county law library might have more information on legal separation.
In many ways, a legal separation is the same as a divorce. Both include custody, parenting time, child support, and, if appropriate, spousal maintenance (alimony) orders. The parties can also ask the judge to issue an order that divides the parties' assets and debts.
The major difference is that if you have a legal separation, you are still married. If you decide you want to end your marriage after a legal separation is complete, you will then need to go through the court process to get divorced.
QUESTION: Since it costs as much, takes as long, and involves the same major issues, why would anyone want a legal separation?
ANSWER: Some couples choose legal separation because of religious beliefs or moral values against divorce. In a few cases, there may be insurance or other financial reasons for a legal separation.
Legal Advice is Important
If you or your spouse are thinking about divorce or legal separation, it is very important to talk with a lawyer and get legal advice. "Legal advice" includes how the law applies to your family situation and knowing your legal options. The lawyer can help you decide whether a legal separation or a divorce is the better choice for you.
Some lawyers offer a free or reduced-fee initial consultation. If there is a consultation fee, it will probably be a good investment to make before you take steps that cannot be undone. Legal separation and divorce can have long-lasting legal and financial impact.
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