Annulment or Divorce: What’s The Difference?

When speaking with couples who want to legally end their marriages, we sometimes get questions about annulment instead of divorce. Often, people assume that annulments are less expensive, simpler, or less contentious.

Sometimes, people are seeking an annulment instead of divorce for religious purposes, as well. Regardless of the reasons behind seeking an annulment instead of a divorce, Colorado has very specific qualifications for couples seeking annulment.

What’s the difference between an annulment and a divorce?

A divorce puts an end to your marriage legally, so you are no longer recognized as married. On the other hand, an annulment means that your marriage was invalid and never existed. If you are entitled to and receive an annulment, in all records and legal documentation, an annulment makes it so that””for all intents and purposes””your marriage never existed.

So what’s required for an annulment?

Because this is a drastic step””declaring that you were never really married””Colorado’s requirements for annulment are very specific and have to fall within strict timelines. In Colorado, you can only get an annulment if:

  • One party was mentally incapacitated and was not legally able to consent to the marriage. This could be mental illness, or a drug or alcohol addiction. This requirement must be reported within 6 months of discovery.
  • The marriage was not consummated because one party was physically incapable. However, this requirement actually only applies if the other party was unaware of the physical disability when the marriage was initiated. This requirement must be reported within 12 months of discovery.
  • If one party was not yet 18 when married and did not have a guardian’s permission. This requirement must be reported within 24 months and must be reported by the underage party or his/her guardian.
  • The marriage was initiated under false pretenses, such as one party misrepresenting himself or herself, the marriage was forced under duress, and/or occurred under false pretenses.
  • Your spouse was already married. This actually voids the marriage because the marriage was never legal in the first place.
  • The marriage is incestuous.

Legal Steps

Individuals who pursue an annulment instead of a divorce still need to address and resolve nearly all of the same issues as a divorce””particularly as they relate to joint property, maintenance fees, or child custody. The process often takes the same amount of time as a divorce and follows many of the same steps. To apply in the first place, one or the other of you needs to have lived in Colorado for at least 30 days or you must have been married in Colorado, and you will need to apply in the county where you reside.

The initial step in petitioning the Court for a declaration of invalidity is to file a petition, summons and case information sheet, and pay the filing fee in the court that you reside in. You may also need to complete additional forms, such as a sworn financial statement, parenting plan, and separation agreement””similar forms to those filed for a divorce, depending on your individual circumstances. After you file your petition, your spouse will have an opportunity to file a response.

After this response period, you may need to complete additional forms, depending on the specific facts of your case before scheduling and attending your final hearing. At the hearing, the judge or magistrate will grant or deny your annulment, and will also enter other orders that may be necessary to deal with joint property, debts, assets, and children.

Conclusion

While some people think getting an annulment would be simpler or cheaper than getting a divorce, in reality, this is not the case. If you are seeking an annulment, look into it carefully before making that leap. In many cases, you may not meet the requirements to request an annulment and will need to pursue a divorce. Annulments and divorce involve many complicated issues and””while you can pursue them on your own””the advice of an attorney could save you money, time and stress.

Divorcing in the Golden Years

Improved medical availability and technology has led to an increased life expectancy in the United States. Americans are living longer, healthier lives than they ever have in any time in our history. And with those longer lifetimes come higher aspirations for life in the Golden Years.

Many Baby Boomers want more from life than just the status quo””and it may be leading more couples to divorce court than ever before. Among the over-60 set, the incidence of divorce has increased sharply””by 50% in just the past 10 years.

Because these couples have had decades to build financial and emotional lives together””children, grandchildren, retirement funds, real estate assets, and shared debt””divorce in the golden years can be far more complicated.

The key factors of concern for divorcing couples over age 60 include:

  • Dependent Incomes: Many couples divorcing after 60 face shared expenses that depend primarily on one or the other’s current or past income. It can be particularly challenging to divide up assets equitably or calculate maintenance when one of you was a stay-at-home parent for decades””supporting the asset accumulation of the bread-winning spouse””while one of you earned the bulk of the income. It can also be more expensive to live as a single person, so you may be facing lifestyle changes with divorce.
  • Healthcare: Along with the dependent income, many couples divorcing later in life share healthcare coverage and costs. If you are retired or have never worked outside of the home, this can present unique challenges that the divorce process and division of assets and maintenance fees must address. At the age of 60, it is still a few years before you will be eligible for Medicare on your own. You’ll need to consider your own medical coverage during the divorce process.
  • Retirement Funds and Debt: Getting divorced does not mean that you have no more rights to your (soon to be ex-) spouse’s retirement or vice versa. If you have been married for longer than 10 years, you are entitled to a portion of each other’s social security benefits. This remains true even if one or the other of you remarry. And social security is just one piece of the retirement puzzle. If you and your spouse shared retirement funds throughout your relationship, dividing those funds can be messy, as can dividing up debts that have been shared for decades. If you have significant retirement assets, including pension plans, 401ks, Social Security and more, a financial planner who specializes in divorce and the division of assets is essential.
  • Emotional Stress: Then, there is the emotional element. Divorce is nearly universally difficult and painful, but a golden years divorce may bring out other emotions. These divorces can be traumatic to grown children, adding a twist to the impact of divorce on children. Divorcing couples over 60 often feel ashamed or embarrassed. Unlike 30- and 40-somethings who are divorcing, you may find yourself without a peer group. Worse, lifelong friendships can be at risk, as couples who have grown with you through the years struggle to deal with the “division of friendship.” Divorce at this stage of life takes different emotional tolls””and resources for you may not be as readily apparent. It’s wise to find a confidant””a therapist, support group, or other relationship””to help you through the emotional upheaval.

Conclusion

Divorce is different in the Golden Years. Impending retirements, medical needs and benefits, substantially larger assets, and emotional challenges less “researched” by experts in the field all bring a unique set of challenges. Financial planners, therapists, accountants, and a good attorney can be invaluable to you as you navigate the additional complexities of an already trying time in what you might have envisioned were the “Golden Years.”

Weathering a Divorce in the Great Recession

Divorce is difficult enough. But when you are facing a recession like the Great Recession””with all the financial uncertainty around it””the challenges of divorce seem to multiply.

In our practice, we have seen the economic impacts first-hand. Some couples are reluctant””or simply unable””to sell jointly owned homes. Others are having a harder time making maintenance and child support payments. Statistics show that these couples, and perhaps you, are not alone. Across the country, couples going through a divorce or modifying existing agreements are experiencing greater levels of stress and upheaval due to economic conditions.

Over the past couple of years, the national divorce rate has decreased significantly, suggesting that some couples who may otherwise have divorced are now limited by financial strain or are afraid to make any major life changes at this time.

Across the country, the impact of harsher economic times has been mixed. Divorce rates had initially declined, leading to divergent speculation that the recession was bringing couples closer together””or that financial hardship was preventing separation. In reality, both opinions appear to be true, according to a study conducted by the National Marriage Project at the University of Virginia. Tough times bring some folks together, while they drive others farther apart.

It has long been reported that financial stress wields significant force in marriages. The UVA study confirmed that, reporting that only 27% of respondents with two or three financial challenges””job loss, foreclosure, and so on””saw their marriage as a “happy” one.

Recent economic evidence suggests that nearly 16% of the working adult population is unemployed, significantly higher than the reported rate of 9.2%. Clearly, that has an impact on the level of stress in a marriage.

At the same time, many couples considering divorce have been forced by economic conditions to put a hold on separation and divorce plans. In the above study, 38% said they had put those plans on hold. The reason for that statistic is likely largely driven by the decline in home prices.

In America, during the boom real estate market of the 1990s and early 2000s, housing prices rose, sometimes dramatically in many areas. Now, in many markets, homeowners are underwater, literally trapped in homes that are worth far less than what they paid.

Housing “wealth” is often the largest tangible financial asset a divorcing couple has. In many markets””including Colorado””selling that asset has become increasingly difficult. It can take many months to sell a property, if it sells at all. And when it does sell, it is often for a reduced price. Many homeowners have to come to the closing table with money to simply clear the loan. Or they go the route of foreclosure or short sales.

But the reality is that the grim outlook for housing values has led many couples to postpone divorce, pushing divorce rates down for the time being.

If you, like so many others, find yourself feeling trapped by any number of recessionary impacts, speaking with an experienced divorce attorney can be beneficial. Though not always ideal, there are a few options for divorcing couples when it comes to dealing with their family home or negotiating maintenance and support during the recession. An attorney can walk you through some of those alternatives, giving you additional resources and strategies while helping you chart a course forward, even as we continue to navigate rough economic waters.

Next week, we will discuss some options for selling the family home during the divorce process.

Protecting Your Assets During Divorce: What Every Coloradoan Needs to Know

During your marriage, you were collaboratively building your nest egg for the future. But in a divorce, what happens to your retirement funds, your home, and your debts?

Dividing assets is one of the primary stressors in any divorce. If you’re beginning the divorce process, what do you need to know to protect yourself and secure an equitable share of assets?

Below, we’ve answered four of the most commonly asked questions about property and asset division.

How is “equitable” division of property decided?

In Colorado, “marital property” must be divided equitably, but that doesn’t always mean your assets will be divided equally. Generally, marital property is any property that is acquired during the marriage, unless the property is acquired by gift or inheritance.

The division of marital property is generally a two-step process. First, it must be determined what constitutes marital property. Once that’s defined and valued, that marital property must be divided equitably. To determine what is equitable, the Court will look at all relevant factors including:

  • Contributions of each spouse to that joint property;
  • Economic circumstances of each spouse;
  • Value of property set apart to each spouse; and
  • Any increase, decrease, or depletion in the value of any separate property during the marriage.

Your lawyer and an accountant can help you answer some of these questions proactively during your divorce proceedings, providing comprehensive checklists and worksheets to evaluate asset values and contributions based on economic circumstances and direct inputs.

What happens to my 401K or employer-sponsored retirement funds?

If you and your spouse have employer sponsored retirement accounts such as a 401K or SEP, these assets may be considered marital property, and your spouse may be entitled to a portion of those retirement funds.

The division of an employer-sponsored retirement account is complicated because of rules and requirements placed on employers for management of those funds. To divide assets in an employer-sponsored retirement fund, a Qualified Domestic Relations Order is usually required by the company to effectuate a transfer of those funds, in part to avoid adverse tax consequences.

Your 401K distribution through the divorce process is not subject to your 401K provider’s early withdrawal fee, if the withdrawal is managed and documented correctly. To avoid problems down the road, make sure that the documents required by your company for division of these assets are approved by the company before they are entered as Court Orders.

What happens to our house?

If you and your spouse own a home together, your house is considered marital property and its value””the proceeds secured from selling it””are divided. But remember, so is the debt associated with the home. Particularly in today’s housing market where sales are sluggish and values are dropping, your house as property””and its ultimate division””will be subject to a variety of factors, including joint mortgage ownership, difficulty in selling, one party not wanting to sell, the presence of children, and conflict over what should be done with the house during and after the divorce.

How are debts split?

Like your assets, debts incurred during the marriage are considered marital property. The first step you should take is to find out exactly what your debts are. You may know exactly how much you owe in debt, but if there is any possibility your spouse has spent money you are unaware of, your first course of action should be to get a credit report. This will identify any and all debt taken out in your name.

Once you are aware of what debt you carry under your name, the next step is to stop taking out additional debt. Discuss with your spouse the best course of action for stopping any spending on these accounts. As mentioned above, debts incurred during the marriage are marital property, and as such, will be split equitably. Who ultimately becomes responsible for which debt will be considered when the court decides an equitable allocation of your assets.

Conclusion

The division of marital property can be complex””particularly if you have a house, retirement funds, or debt. Speaking with a lawyer can help you secure a fair division of assets and liabilities. In some cases, you may also want to consult with additional experts””including accountants and financial advisors who specialize in divorce issues””to properly advise on issues related to your joint assets.

Why Facebook Might Not Be Your Friend During Divorce

Lawyers are reporting more and more cases in which an angry spouse went to Facebook and made negative comments about their soon-to-be ex”¦only to have those Facebook postings “among friends” come back to haunt them in their divorce proceeding.

Going through a divorce is an emotional, stressful time. During these times, it’s natural to turn to your virtual support group for help. But if you are in the process of divorcing, think twice before venting on Facebook.

According to a recent survey by the American Academy of Matrimonial Lawyers (AAML), Facebook is a primary source for online evidence in 66% of divorces today. What people say on their walls and in comments is public and it can be used in divorce proceedings. And there is even more reason to beware of Facebook. Even what other people post about you is public knowledge! For example, if you are tagged in a photo, you are now visible in that photo to not only your friends but your friends’ friends, and possibly the entire public, depending on your friends’ privacy settings. So it’s “poster beware” when it comes to Facebook for anyone contemplating or engaged in divorce proceedings.

So what are some common Facebook mistakes people make during their divorce process?

  • Trashing Your Ex: Be on the safe side and curtail your Facebook activity during any divorce or custody proceedings. We all need a support group, but for now, a smaller, less virtual one is probably safer.
  • Posting (or Posing for) Damning Photos: Avoid posting things yourself that could put you in an unfavorable light, and ask your friends to refrain from posting any images that contain your photo.
  • Lying: Because Facebook posts are admissible in divorce proceedings, you may get caught in any lie you tell; for example, misrepresenting your financial situation and then posting about new purchases and expensive hobbies.

Another recent survey by the American Academy of Matrimonial Lawyers found that 81% of their attorneys are seeing a rise in social media being used in divorce cases .

The average Facebook user has 130 friends. And those friends have an average of 130 friends. And so on and so on. Each of your friends has varying levels of privacy settings. Some of your friends may be completely private, but some may be visible to anyone and everyone. If just one of your friends posts on his or her wall and one of their friends shares that on his or her wall, your private life could be reaching a wider audience than you ever imagined.

If you post something on Facebook that touches any of your divorce negotiations, be prepared to answer to it in court. Or even better””find a good friend to talk to in person about your divorce and leave Facebook alone until your case is closed.

Colorado Just Banned Same-Sex Marriage, What Rights Do We Have Now?

Cultural attitudes toward same-gender marriage and civil unions are shifting dramatically, as states move to recognize””in some fashion””the rights of same-gender couples. New York’s recent passage of a same-gender marriage law made it the sixth and largest state to legalize same-gender marriage in the country.

But same-gender marriage laws are state-based, which brings to the table a myriad of legal issues when a same-gender couple legally married in one state relocates to another state without legal recognition of domestic arrangements.

So what does it mean for you if you were married in Massachusetts or New York? Will you have the same rights if you end up living in a state that does not recognize same-gender unions, as a marriage, civil union, or domestic partnership?

Not in Colorado. As of today, Colorado has a state constitutional amendment banning same-gender marriage, and it also does not recognize civil unions or domestic partnerships between same-gender couples. So a marriage in another state that recognizes same-gender marriages will not be recognized in Colorado.

That does not mean that same-gender couples are without rights in our state. There are several key legal rights for same-gender couples in Colorado.

Designated Beneficiary

While your same-gender relationship may not be recognized as a legal union in Colorado, you do have rights to property and assets. The designated beneficiary agreement enables you to file a form with your county clerk that legally makes your significant other the recipient of your benefits and””in case you don’t have a will or testament””your assets upon your death. While not as all-encompassing as other estate planning measures, it is both legally recognized and cost-effective.

You can pick up a copy of the designated beneficiary agreement form at many family law practices, including Divorce Matters, or download the form from your city or county website. You can also find more information at www.designatedbeneficiaries.org.

“Prenuptial” Agreements

The term “prenuptial” is technically inaccurate because the marriage is not legally recognized, but the intent and purpose of this document is the same. If you, as a same-gender couple, are planning to enter a long-term relationship, you may want to speak with an attorney to explore asset protection through a variation of the prenuptial agreement that applies to same-gender couples.

As with all prenuptial agreements, you will delineate exactly what assets will be joint or kept separate throughout the life of your relationship, and you will legally define how you will divide assets and debts should the relationship end. Although you may not be recognized as married in the eyes of the law, the legal document will still be binding.

Same-Gender Second-Parent Adoptions

The third right same-gender couples have is not related to marriage or divorce but rather starting a family. Some states do not allow same-gender couples to adopt children together, which leaves same-gender parents open to a variety of legal loopholes””from challenging family members to lack of authority with their children’s caregivers or schools. It may even impede a same-gender parent’s right to visit his or her child in the hospital.

In Colorado, same-gender couples are allowed to adopt children, regardless of gender orientation or biological connection. Colorado same-gender adoption laws recognize both parents as having full and legal custody.

Conclusion

According to the last census, there were 16,114 same-gender couples living in the state of Colorado, and 3,690 of these couples were raising children together. While same-gender marriage itself is not recognized in Colorado, there are other rights available that protect the interests of same-gender couples. As we watch the environment regarding the same-gender marriage change around us””and as more and more states follow New York’s lead””we will likely see more changes to the law and legal protections for same-gender couples in the future.