Divorce is the most common form of ending a marriage. However, a married couple can also go their separate ways through legal separation or annulment. If you are planning to end your marriage but aren’t sure of the right option, it’s important to understand the legal possibilities available to you and your spouse. Annulment, legal separation, and divorce can each work differently depending on your unique circumstances. Ending a marriage is a difficult decision to make, and it’s essential to do it right.
Dissolution of Marriage
A divorce, or dissolution of marriage, is the legal ending of a marriage. Either spouses agree to file for a divorce in an uncontested divorce, or the divorce is contested. Legal entities like the court recognize that the parties were legally married but no longer are.
In Nebraska, divorces can only be filed on a no-fault basis. The reason for filing for a divorce is that the marriage is irretrievably broken.
Parties must also meet the residency requirement to file for divorce in Nebraska. At least one spouse must be a resident of the state for one year. This requirement is waived if parties were married in Nebraska less than a year before filing and have lived in the state for the duration.
A divorce includes dealing with alimony, child support, child custody, and division of property. If a divorce is resolved through litigation, the property is divided in the state according to equitable distribution laws. Each spouse begins with an equal claim to marital assets obtained during the marriage, and the court determines a fair division based on several factors.
If spouses want to file for divorce but don’t meet the residency requirements or aren’t ready for the finality of a divorce, legal separation may be the right option. Legal separation can allow spouses to separate until they meet residency requirements and can get divorced. Spouses can live separately and have provisions for support, custody, or property division while remaining legally married. Though legal separation can be a first step for some couples, it can also be the final step for others. Some couples wish to live separately and maintain individual lives while keeping a legal marriage for practical reasons.
There are both formal and informal versions of separation. Spouses can live separately without obtaining a legal separation. These couples may be physically separated, but there are no legal decisions about the separation of debts and assets or about alimony. In a legal separation, several steps are similar to a divorce, including filing and serving papers to a spouse. Legal separation provisions like custody and support can be determined by spouses and rarely go to trial.
An annulment is different than a divorce or legal separation for two main reasons:
- It can only be done if the marriage meets certain qualifications
- A successful annulment makes it as though the marriage never happened to begin with
Because an annulment makes a marriage completely invalid, an annulment may not provide spouses with the same protections as a divorce. Even if you qualify for an annulment, there may be a reason to get a divorce anyway, if possible. Because parties were never legally married after an annulment, the court has no authority over the division of property, and no alimony can be awarded.
A marriage can qualify for annulment for one of the following reasons:
- Prohibited by Law
There are some marriages that are never legal. In Nebraska, this includes marriages between close relatives and marriages where one party was not mentally competent during the marriage. This may include being under the influence, being unconscious, or not having the mental capacity to understand the legal significance of the act. Marriages are also illegal if one or both spouses were under the age of 17.
If a spouse is unable to consummate a marriage and did not disclose this prior to the marriage, an annulment can be filed.
Bigamy is when a spouse has a prior legally valid marriage. Marriages based on bigamy can be annulled.
- Force or Fraud
If a spouse was forced or coerced into marriage, that is grounds for annulment. If a spouse lied or misled their partner about significant aspects of themself or their circumstances, the marriage may be annulled.
Q: Is an Annulment the Same as a Divorce in Nebraska?
A: No, an annulment is not the same as a divorce. While a divorce is the legal dissolution and end of a marriage, an annulment erases the existence of a marriage on the basis of it being illegal or invalid. An annulment can only be obtained if the marriage qualifies for reasons such as bigamy, incest, underage spouses, fraud, or misrepresentation.
Q: What Is Considered Legally Separated in Nebraska?
A: Legal separation occurs when spouses file for legal separation and live in separate locations from the date of separation. They remain legally married but may have court orders for determining child custody, alimony, child support, and the division of some assets and debts. If couples decide to live separately but do not go through the process of filing, this is informal separation, not legal separation.
Q: What Is the Difference Between Legal Separation and Divorce in Nebraska?
A: A divorce legally ends a marriage, while legal separation does not. A legal separation defines both spouses’ duties and responsibilities to each other and allows them to live separately. However, they are still legally married. For some couples, legal separation is the first step before divorce. They may not meet the residency requirements for divorce or want to test out separation and begin the initial determinations for alimony, division of property, and child custody. Other couples may want to retain the benefits of marriage but live separately.
Q: How Long Can You Be Married and Still Get an Annulment in Nebraska?
A: If there are legal grounds for the annulment, it can happen at any time. However, the court is more likely to grant the annulment the sooner it is requested. In cases where the reason for annulment was outside the individual’s control or reasonable knowledge, the court may be more forgiving about a long period of time passing. If the marriage does not meet the legal grounds for an invalid or illegal marriage, it cannot be annulled.
Contact Stange Law Firm
If you are unsure what the ideal route for your separation is, an experienced divorce attorney can listen to your situation and help you find the right solution. Contact the attorneys at Stange Law Firm today.