What is a marriage?
Marriage is defined as a civil contract between two people of the opposite sex, and must be of age or have the consent of a parent and must be unmarried and not divorced within the six months prior to entering the current marriage contract. Generally, to be married, two people must be of opposite gender. However, some states are in the process of changing the different sex requirement.
What is a common-law marriage?
A small minority of states allows the creation of marriage by common law. A common-law marriage is one in which there is no ceremony or marriage license. As in the above definition, parties must be capable of contracting and generally be of opposite gender. A common law marriage requires an actual agreement by the two people to act as husband and wife. The agreement may be by words or conduct. In addition, there must also be a "holding out" of the marital status. This means that the parties must represent themselves as married to others, such as using the same name, calling each other "husband" or "wife", opening joint accounts or contracting joint debt, filing a joint tax return, etc.
If there is a disagreement as to whether or not the parties are married, the person alleging that a marriage exists must prove the marriage by clear and convincing evidence. If the relationship is not initially a common law marriage, because of a lack of contract capacity, the common law marriage may still be created if the couple continues the "marital" relationship after the contract defect is removed.
What is a divorce?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.
What is an annulment?
Marriage is a contract, an annulment is a method of voiding a marriage from the beginning. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted, however, if the marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
An annulment cannot be granted in a common-law marriage. Since the defect or fraud goes to the creation of the contract, if any of the annulment grounds exist, that ground would prevent the creation of the common-law marriage.
What is a legal separation?
Legal separation is a legal status granted by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. The process of legal separation is sometimes called "separate maintenance." A decree of separate maintenance cannot later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.
Must I get divorced in court?
Yes, it is still necessary for a person who wants a divorce, to issue a summons against the other person and then to appear in court to give evidence. If the case is not defended, the process is usually fairly quick and uncomplicated, particularly if there are no children and simple proprietary issues.
How long does it take to get a divorce?
The time required to obtain a divorce varies. Generally, a divorce takes anywhere from six weeks, to a couple of years. The divorce is final as soon as the judge signs the divorce decree. Parties to a divorce may not remarry anyone except each other for 6 months after the decree is granted.
Do I need an attorney to file for divorce?
No. However, unless your divorce is extremely uncomplicated, and does not involve children or division of substantial property or assets, then using the services of a family law attorney is generally a good idea.
What about the $99.95 "do it yourself" divorce kits?
Most lawyers really like these kits because they can charge you a lot of money to fix the messes that they have created. You should exercise caution before attempting to utilize such a kit. If you really want to do it yourself, call your local bar association and ask for a referral to a legal clinic or look in the yellow pages for a legal support clinic.
