Contents of this Page
Annulment / Non-Marriage / Legal Separation
Annulment
Suit to Declare Marriage Void
No Marriage At All
Legal Separation
Annulment / Non-Marriage / Legal Separation
Annulment
Texas law does provide some basis for an annulment instead of a divorce, but cases in which the facts fit the law are extremely rare, so these cases almost always wind up as divorces.
Annulment statutes are based on some sort of trick or deception at the time of marriage, and also require that the parties have not lived together since the trick or deception was discovered.
An annulment may be had:
- if one of the spouses is under 14 years of age
- if one of the spouses is under 18 years of age and no parental consent was obtained before the marriage
- if the person asking for annulment was under the influence of alcohol or narcotics at the time of marriage, and has not voluntarily cohabited with the other party since the effects of alcohol or narcotics have ended
- if one of the spouses was permanently impotent at the time of the marriage, the person asking for annulment didn't know about the impotence at the time of marriage, and the person asking for the annulment has not voluntarily cohabited with the other party since learning of the impotence
- the other party used fraud, duress, or force to induce the petitioner to enter into the marriage, and the petitioner has not voluntarily cohabited with the other party since learning of the fraud or being released from the force or duress
- lack of mental capacity
- concealed divorce less than 30 days before the marriage sought to be annulled (and no cohabitation since learning of it)
- if the parties married less than 72 hours after the marriage license was granted and an annulment suit is filed less than 30 days after the marriage
Suit to Declare Marriage Void
Similar to an annulment, a marriage may be declared void if:
- the parties are too closely related to one another (ancestor or descendant by blood or adoption; brother and sister of whole blood, half blood, or adoption; uncle/aunt by whole blood, half blood or adoption; a first cousin by whole blood, half blood, or adoption)
- bigamy (one of the parties married at time of this marriage)
No marriage at all
A marriage is between and a woman, according to state law. A gay or lesbian relationship cannot be ended by divorce, annulment, or suit to declare marriage void, because it was never a marriage in the first place. Division of assets on the breakup of a homosexual relationship in Texas is basically the same as if roommates decide to part company: if you bought it, it's yours, and you don't own anything together unless you can prove you bought it together.
Legal Separation
Some states have legal separation. Texas doesn't. Here, you're married or you're not. Usually this comes up in the context of protecting oneself from debts incurred by the other spouse while a divorce is contemplated.
I don't fully understand legal separations as they do them in other states. In Texas, there are potential problems with separating instead of getting divorced. That's not to say that you should get divorced instead of separated, but you need to recognize the problems and determine whether or not you want to do something about them.
The first problem is that your spouse may fall into some sort of addictive behavior which will consume property that belongs to both of you. Sex, drug, gambling, and alcohol addictions can cause one to not only spend money you shouldn't spend, but to destroy assets (e.g., crash cars), or forfeit assets when arrested. And, your spouse may run up huge debts that you may or may not be responsible for, and which may ruin your credit.
First, you and your spouse can enter into a marital property agreement, which is like a prenuptial agreement except signed after you've gotten married. In that agreement you can specify whose stuff is whose, who is responsible for what debts, and even take steps to avoid creating separate property. As a practical matter, husband must have a lawyer, and wife must have a different lawyer. And neither of those lawyers will be me, because I don't do these agreements (not enough practice to be proficient).
Second, and less satisfactorily, you can start a divorce, and enter into agreed Temporary Orders which spell out nearly anything that could be spelled out in divorce, such as who has custody of the kids when, how much child support is paid, who lives in the house, etc. Then, you can just delay the decision on signing the final divorce papers. However, sooner or later the judge will clean house and will send you a notice that the divorce (and the Temporary Orders) will be dismissed if you don't do something. Click here for more info on having your case dismissed.
Informally, there are a few things to offer yourself some protection.
- Separate your assets, especially financial assets. Close joint bank accounts.
- Pull a credit report on yourself, find out which credit card accounts have you listed as the primary, and call each of those credit card companies and tell them that you will not be responsible for your spouse's charges, and they should cancel their card.
Children -- There is almost nothing you can do short of starting a divorce to protect yourself against the bad actions of the other parent regarding the children. He or she is still a lawful parent of the children and has the same legal rights you do. Just as you can take the kids to Minneapolis to be with your parents, your spouse can take the children to Mexico to be with his/her parents.
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