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What are the differences between a Divorce, a Legal Separation, and an Annulment?

Katy Ellis

In theory, a divorce, a legal separation, and an annulment are all very different things. A divorce acknowledges that the parties were married and that they no longer want to be married. A legal separation acknowledges that the parties were married, and it serves to divide their assets and liabilities, making them no longer responsible for one another, but it also leaves them legally married to one another and therefore unable to marry anyone else. An annulment basically undoes the marriage as though it had never happened in the first place, from a legal perspective.

In practice, however, all three actions go through the same basic process in the Colorado legal system. Regardless of whether the parties are seeking a divorce (dissolution of marriage), a legal separation, or an annulment (invalidity of marriage), in order to complete that process, the parties have to disclose their financial information to one another, and a court will divide their assets and debts, enter orders regarding spousal maintenance and child support, and address any issues regarding parental responsibilities (including parenting time).

Both divorce and legal separation are addressed in Colorado Revised Statute 14-10-106, which allows the court to enter a dissolution of marriage (divorce) if the parties have been domiciled in Colorado for 91 days before they file a petition for dissolution of marriage or legal separation, if the court finds that the marriage is irretrievably broken, and if at least 91 days have elapsed since the court acquires jurisdiction over the respondent in the case. That same statute provides that the court shall enter orders regarding parental responsibilities concerning any child of the marriage, child support for any children of the marriage entitled to support, spousal maintenance, and disposition of property.

Divorce and legal separation therefore have the same basic procedures in front of the court. The only significant difference between the two is that a decree of legal separation still leaves the parties married to one another. That means neither of them can marry anyone else unless they convert the decree of legal separation to a decree of dissolution of marriage. Colorado law also allows either party to convert a decree of legal separation to a decree of dissolution of marriage unilaterally (without the other party’s consent) if at least 182 days have passed since the decree of legal separation was entered.

Some insurance policies allow couples who are legally separated but not divorced to remain on one another’s insurance. That type of policy appears to be quite rare, but there are some instances where that is possible, which is one reason that some couples choose that option instead of a full divorce. In other cases, the decision to select a legal separation instead of a divorce has more to do with religious or personal reasons.

An annulment (declaration of invalidity) is much harder to obtain. Colorado allows a court to enter a decree declaring the marriage invalid if a party lacked capacity to consent to the marriage, lacked capacity to consummate the marriage, was under age at the time of the marriage, entered into the marriage in reliance on fraud by the other party that goes to the essence of the marriage, entered into the marriage under duress, entered into the marriage as a jest or dare, or if the marriage itself is prohibited by law. C.R.S. § 14-10-111(1).

If a court does declare the marriage invalid, the marriage is treated as having been invalid since the date of the marriage. Despite that, the statute still provides that all of the laws regarding property rights, spousal maintenance, child support, and parental responsibilities still apply to a decree of invalidity, so pursuing this option does not spare a party from having to disclose financial information or limit their exposure for having to give up some property or pay support. As with a legal separation, the decision to pursue an invalidity of marriage instead of divorce will often have more to do with religious or personal reasons than legal ones. There are some cases, however, in which an invalidity of marriage has legal implications for someone. For example, a party may need to pursue invalidity of marriage for a first marriage in order to avoid claims of bigamy resulting from a second marriage. That situation is hopefully a rare one, but it has occurred.

If someone is contemplating ending their marriage and does not know which of these options would be the best choice for their particular situation, they should definitely speak with an attorney to be able to make a well-informed decision. The attorneys at the Harris Law Firm are well equipped to help people navigate these options.

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