9.6: Introduction to Legal Actions Impacting Marriage

Unfortunately, not everyone who marries stays married. Sometimes marriages deteriorate beyond repair or weren’t properly entered into in the first place. Other times, married persons know something is wrong in their marriage but they aren’t yet sure they want to terminate the marriage. Because there are multiple circumstances that can lead to marital troubles, there are multiple legal actions the parties can take that will impact their marriages in different ways. These legal actions are annulment, divorce, and legal separation.

Definition: Terms Relating to Legal Actions Impacting Marriage

Annulment: A court declaration that a valid marriage never existed, despite the fact that the parties may have completed most or all of the steps required to enter into a marriage. This is not the same as a religious or “church” annulment; it is a court order obtained pursuant to state law. It is based on a determination that either the essential requirements of marriage were not met, or that there were significant irregularities that resulted in the procedural/technical requirements of marriage not being met

Divorce: A court declaration terminating an existing valid marriage. There is no question whether the parties entered into a valid marriage; however, when a divorce judgment is entered, the parties are no longer married to each other.

Legal separation: A court declaration that allows the parties to live apart from one another without terminating their marriage. Similar to a divorce, there is no question whether the parties entered into a valid marriage; however, unlike a divorce, a judgment of legal separation does not terminate the parties’ marriage.

Aside from the impact on the parties’ marital status, annulments, divorces, and legal separations look very similar to one another. The table below shows a side-by-side comparison.

Legal Action	Definition	Impact on Marital Status	Potential Court Orders
Annulment	A court declaration that a valid marriage never existed	“Like it never even happened” The parties were never married	Marriage is dissolved Property division Spousal support Child custody, placement and visitation Child support
Divorce	A court declaration terminating an existing valid marriage	“It’s over now” The parties used to be married and now they are no longer married	Marriage is terminated Property division Spousal support Child custody, placement and visitation Child support
Legal Separation	A court declaration that allows the parties to live apart from one another without terminating their marriage	“It’s complicated” The parties are still married, but they don’t live together anymore	Property division Spousal support Child custody, placement and visitation Child support

Annulment

Annulment is fairly rare, due to the limited reasons that are legally sufficient (grounds) required to obtain an annulment. Historically, the grounds for annulment have been divided into two categories: (1) grounds that render the marriage void and (2) grounds that render the marriage voidable. Though both categories are comprised of serious problems with the marriage, problems that render a marriage void are far more serious.

Definition: Terms Relating to Annulment

Void marriage: A marriage that is invalid from the beginning, even if there is never a court judgment of annulment.

Voidable marriage: A marriage that is invalid only if a court enters a judgment of annulment.

Legal standing: The right to file a claim or bring an action seeking that judgment.

A void marriage is invalid from the beginning, even if there is never a court judgment of annulment. That being said, in reality, the courts are often asked to enter judgments of annulment for void marriages so that there is a public record.

In contrast, a voidable marriage is invalid only if a court enters a judgment of annulment. That means the marriage can continue and will be treated by the law as if it were valid unless and until someone files a court action to have the marriage declared invalid. Voidable marriages can be ratified (or approved retroactively) through action, inaction, or other conduct or agreement by the parties that can be reasonably interpreted as an approval. For example, suppose that Spouse A was underage when the marriage occurred, and Spouse B was not aware that Spouse A was underage. If Spouse B continues to live with Spouse A after discovering that Spouse A is underage, this would be interpreted as a ratification or approval of the marriage by Spouse B.

When a marriage is voidable, a person seeking a judgment of annulment must demonstrate legal standing. Generally speaking, only the “innocent party” has standing to seek an annulment. The equitable “clean hands doctrine” (which you learned about in previous chapters) provides that it would be unfair to allow a person to profit from their own wrongdoing or other inappropriate behavior. As a result, if a marriage is voidable due to deceitful, coercive, or other wrong behavior by one of the parties, that party is estopped (legally prevented) from asserting a right, a cause of action, or a defense.

At this point, it may be helpful to review Chapter 5 with respect to the requirements for marriage, as well as for an explanation of marriage by estoppel. The Tables below summarize the different grounds for annulment.

Void Marriages

Grounds	Definition	Marriage requirement impacted	Can the marriage be ratified by the parties?	Who can seek annulment?
Prior existing marriage	At the time of the current marriage, one or both parties was still legally married to someone else.	Legality of marriage	No However, the marriage can be validated if the prior spouse is “presumed dead”	Either party
Improper relationship by blood or marriage	The parties are too closely related by blood (may include adoption) or through marriage of other family members (may include step-family relations)	Legality of marriage	No	Either party
Sham marriage	One or both parties never had actual intent to marry and live as spouses. Instead, they married for improper reasons (for example, to avoid deportation or gain financial benefits)	Intent to marry	No	Either party

Voidable Marriages

Grounds	Definition	Marriage requirement impacted	Can the marriage be ratified by the parties?	Who can seek annulment?
Underage	One or both parties did not meet statutory age requirements	Capacity to marry	Yes, by cohabiting as married persons after reaching the minimum required age and/or after discovering that the other person was underage	Either party, unless one party lied about their age. A parent or legal guardian may also have standing, but must bring action within 1 year of obtaining knowledge of the marriage
Mental disability	One or both parties suffered from a mental health condition (capacity) or influence of drugs, alcohol, or medication that prevented the person from understanding the rights and obligations of marriage	Capacity and/or intent to marry	Yes, during a “lucid interval” of the affected person (mental health condition). Yes, by cohabiting as married persons after the influence no longer impairs the person’s understanding	The “innocent” or impaired party. A parent or legal guardian of a person lacking capacity to consent may also have standing Action must be started within 1 year of obtaining knowledge of the condition
Duress	A party was coerced to marry by unlawful force or threat	Intent to marry	Yes, by cohabiting as married persons after the condition causing the duress no longer exists	Only the “innocent party” Action must be started within 1 year of obtaining knowledge
Fraud	A party’s intent to marry was based on the other party’s intentional misrepresentation or concealment of an essential fact	Intent to marry	Yes, by cohabiting as married persons after discovery of the fraud	Only the “innocent party” Action must be started within 1 year of obtaining knowledge
Physical disability	One or both parties has a physical condition preventing consummation of the marriage through sexual intercourse	Capacity to marry	Yes, by cohabiting as married persons after discovery of the physical disability	Only the “innocent party” who lacked knowledge of the other’s condition. Action must be started within 1 year of obtaining knowledge

Once a judgment of annulment is entered, the parties are free to marry other persons (after a 6-month waiting period, in Wisconsin). Parties wishing to “reconcile” must complete the process to enter into a valid marriage according to Wisconsin statutes (in other words, they must remarry each other).

Divorce

In many respects, divorce is much simpler than annulment. Most states have adopted statutes that provide for no-fault divorce, meaning that a divorce will be granted without the need to prove any type of marital misconduct wrongdoing. In fact, allegations of marital misconduct (other than physical or mental abuse) are irrelevant in no-fault divorce states and have no impact on any court orders that may be entered as part of a divorce judgment.

In Wisconsin, a court may enter a judgment of divorce based on any one of the following grounds:

• Both parties state under oath that the marriage is “irretrievably broken.”
• Only one party states oath that the marriage is “irretrievably broken.” (The other party denies that the marriage is irretrievably broken) and the parties have voluntarily lived apart continuously for at least 12 months
• Only one party states an oath that the marriage is “irretrievably broken.” (The other party denies that the marriage is irretrievably broken) and the court determines there is no reasonable prospect of reconciliation

In other words, Wisconsin does not allow one spouse to prevent the entry of a judgment of divorce by objecting to the termination of the marriage or denying that the marriage is irretrievably broken. Although the court may delay the matter for up to 60 days and suggest the parties undergo marital counseling, if after that time one of the parties continues to state under oath that the marriage is irretrievably broken, a divorce judgment may be entered.

Wisconsin does allow the parties to seek a court order suspending the divorce proceedings for up to 90 days if they want to attempt to reconcile. If the parties are unsuccessful and the suspension is revoked by either party or the court, the action continues as if there had been no attempt to reconcile.

Once a judgment of divorce is entered, the parties are free to marry other persons (after a 6-month waiting period, in Wisconsin). Parties wishing to “reconcile” must complete the process to enter into a valid marriage according to Wisconsin statutes (in other words, they must remarry each other).

Legal Separation

Sometimes one or both parties simply are not ready to terminate their marriage. The parties may not be emotionally ready to accept the finality of a divorce or may have spiritual or religious reasons for being opposed to divorce. Financial or other practical circumstances might also make divorce unappealing. For these people, legal separation is seen as a “trial divorce” that gives the parties physical and emotional space to consider whether they wish to seek a “full and final” divorce.

In Wisconsin, the grounds for legal separation are similar to the grounds for divorce, except that a party only needs to state that the marriage is “broken” rather than stating that it is irretrievably broken. If, prior to judgment, the parties change their minds, they can request that the action for legal separation be dismissed. Once a judgment of legal separation is entered, parties wishing to “reconcile” can request a revocation of the judgment.

An action for legal separation can also be converted to an action for divorce. Prior to entry of a judgment for legal separation, if one or both of the parties in a legal separation action state under oath that the marriage is irretrievably broken, the action will be converted to an action for divorce. If the judgment for legal separation has been entered, the parties must wait at least one year before seeking to convert the judgment to a judgment of divorce.

Impact of Annulment, Divorce, and Legal Separation

Because of the different ways each type of judgment affects marriage, the impact of each judgment on involved parties’ other relationships, rights, obligations, and benefits differs as well. The table below summarizes those impacts under Wisconsin law.

Impact	Annulment	Divorce	Legal Separation
Right to inherit from the other party	Terminated	Terminated	Continues
Provisions in a will signed prior to judgment giving gifts or powers to the “former spouse” or to the “former in-laws”	Void	Treated as if the “former spouse” or “former in-laws” pre-deceased	No impact, as the parties are still legally married
Spousal privilege (prevents spouses from being forced to testify against their spouses)	Destroyed	Terminates for actions or circumstances that happened after the judgment	Continues
Interspousal tort immunity (prevents spouses from suing one another based on certain types of claims)	Terminates for actions or circumstances that happened after the judgment	Terminates for actions or circumstances that happened after the judgment	Continues
Government benefits (for example, social security payments)	Individual benefits may be reinstated No qualification for spousal benefits	Individual benefits may be reinstated Qualification for spousal benefits for marriages that lasted at least 10 years	Benefits may be reduced
Health insurance coverage	Coverage for ex-spouse terminated when judgment is entered	Coverage for ex-spouse terminated when judgment is entered	Coverage for spouse may be terminated when judgment is entered, depending on the policy language
Beneficiary designations under life insurance, retirement benefits, annuities, etc.	Unclear; depends on the insurance policy or plan documentation	Likely terminated; retirement benefits and annuities may be divisible	Unclear; depends on the insurance policy or plan documentation

Children born of annulled marriages are not impacted. The law continues to treat them as “marital children” with rights to support, inheritance, and other benefits from both parents.