For many reasons, including religious beliefs, health insurance, pensions or to qualify for Social Security benefits, you and your spouse may choose not to pursue a divorce to end your relationship.
There are a few alternatives to divorce:
- Legal separation,
- Annulment, and
Legal separation and annulment still involve opening a legal case by filing documents with the court. The procedures for obtaining a legal separation or annulment are similar to divorce, but not exactly the same. A Non-divorce is not a legal action. It involves separating physically but never legally formalizing the arrangement.
What is a legal separation?
A legal separation separates the husband and wife physically and financially without formally dissolving the marriage. If one spouse later wishes to pursue the divorce, the terms of the legal separation can be converted into a formal divorce decree, which can greatly speed up the divorce process.
As a legal proceeding, a legal separation cannot be obtained any quicker, cheaper or easier than a divorce. The legal forms and procedures are almost identical to those in a divorce. The division of marital assets and debts is the same. The determination of spousal maintenance, child support, parental responsibilities and parenting time is also the same.
Legal separation versus divorce
There are only a couple significant differences between a legal separation and a divorce.
- The parties are not free to legally remarry.
- The parties are still considered married regarding inheritance rights if one party dies.
Similar to a divorce, the only grounds required to obtain a legal separation is that the marriage is irretrievably broken. However, both parties must agree to a legal separation, which differs from a divorce, in which one party can obtain a divorce without the other party’s consent. A Colorado district court has jurisdiction over legal separations.
If you are considering pursuing a legal separation instead of divorce to maintain health insurance coverage or other benefits, understand that the terms of the insurance or benefit plan determine availability and eligibility if the parties obtain a legal separation. The plan may consider a legal separation the same as a divorce, which could trigger the loss of coverage or benefit.
An experienced and qualified attorney will review and explain all of the advantages, disadvantages, and consequences of getting a legal separation or a divorce.
What is an annulment?
The annulment of a marriage or civil union in Colorado invalidates the marriage from the date the marriage or union occurred.
The courts handle any property division, spousal maintenance, child support, parenting responsibilities, and parenting time in the same manner as a divorce.
Colorado state law allows a marriage to be invalidated or annulled if:
- One party lacked the ability to consent to the marriage because of mental capacity, illness or physical ability, drugs, alcohol or other substance.
- One party lacks the physical capacity to solemnize the marriage by sexual intercourse and the other party was unaware of the incapacity.
- One party was under the legal age to marry and did not have the parents’ or guardian’s consent.
- One party entered into the marriage in reliance of a fraudulent act or misrepresentation that goes to the essence of the marriage.
- One or both parties entered into the marriage under duress from a third party.
- One or both parties entered into the marriage as a joke or dare.
- The marriage is prohibited by law.
If the court grants the annulment due to one party’s fraudulent act or misrepresentation, then the fraudulent party cannot receive spousal maintenance or any property attributable to the innocent party’s contributions to the marriage.
An annulment action may be filed by:
- Either spouse,
- A legal spouse in the case of bigamy, polygamy or an incestuous marriage,
- An appropriate state official, or
- By a child of either party before either party’s death or within three months of the final settlement of the estate of either party.
One party must live in Colorado, or the marriage must have a Colorado license, before filing the annulment.
What is a non-divorce?
A non-divorce is an agreement between two legally married adults that will separate physically from their relationship, but never legally formalize the arrangement.
This arrangement may sound appealing if you have children or if you feel the financial expense and emotional turmoil that a divorce would cost is too disruptive.
However, legally, it is not a good idea if you want to separate your life from that of your spouse. And here’s why.
- Property. You won’t have a date on the calendar when your property becomes only yours. A divorce or legal separation establishes a date when you and your spouse’s stop acquiring property as a legal partnership. In a non-divorce, everything you acquire during the marriage and during the non-divorce time period is considered marital property and subject to equitable division. Your spouse will technically own about half of everything you acquire during the non-divorce.
- Debt. Similarly, you will be legally responsible for any debt your spouse acquired on his or her own during the non-divorce. Without a date that signifies the end of your marriage and legal relationship, there’s no end to your liability for your spouse’s debts.
- No support. If you are still married, a court cannot grant you spousal maintenance or child support. You and your spouse will be dependent on each other’s goodwill to pay expenses. If one spouse remains dependent on the other’s income, the dependent spouse has no legal protection if the income-earning spouse decides to pay less of the household expenses.
- No parenting plan. Time with your children will be dependent on voluntary participation. Also, if either party seeks a divorce later, it may be hard for either party to make a case for primary physical custody.
If the parties’ relationship is toxic, and filing for divorce now would result in an ugly and bitter fight, a non-divorce may be a temporary alternative while the parties work on the relationship so when the split does happen, it’s more amicable and healthy for themselves and their family.
If you need help sorting through these options, the experienced family law attorneys at Robinson & Henry can help. For your free, no obligation, consultation call (303) 688-0944.