A lot of people nowadays fear getting married because of the divorce rates that only seem to be climbing. Thus, the likelihood of divorce begins to play a part in the phenomenon of marital bliss. Couples ask themselves if a stressful legal battle in the event they decide to part ways is worth it in the end. However, divorce and litigation are not the only options for couples who want to part ways. The following sections offer some alternatives to divorce and litigation, that are more cost-effective, more amicable and less stressful.
Annulment as an Alternative to Divorce
Sometimes a married person will seek an annulment instead of a divorce, often for religious reasons. There are other advantages, though – for example, courts are unlikely to order alimony after an annulment. Whereas as divorce dissolves a marriage, an annulment declares that the marriage was never valid. Annulments are much harder to obtain. The following sections elaborate the different grounds for an annulment.
Age: If one spouse wasn’t at least 18 years of age, or didn’t have required parental consent if they were under 18 when married, the marriage is void. Applicants for marriage who are younger than the age of 16 must obtain parental consent and have the consent approved in writing by any judge of the Superior Court, Chancery Division, Family part. It’s highly unlikely that a person could obtain a marriage license without parental and court approval, but if it did happen, that marriage could be annulled.
Impotence / Inability to Conceive: New Jersey courts will grant annulments on the grounds of impotence where a spouse is either unable to consummate the marriage and/or unable to conceive a child by engaging in sexual relations, or refuses to do so. This is gender neutral: sterility or refusal to engage in sexual relations is grounds for divorce no matter if the sterile or withholding party is a man or a woman.
To obtain an annulment on the ground of impotence, the moving party must prove that the other spouse was permanently and incurably impotent/unable to conceive (or unwilling to engage in sexual relations) when the marriage began and that the moving party did not discover the fact until after the marriage.
It is important to emphasize that any impotence/inability to conceive that originates after the marriage is not considered to fall within this ground for annulment.
Bigamy: Bigamy, or being married to multiple persons at the same time, is a crime in New Jersey. If your spouse had another living spouse at the time of your marriage, and you were unaware of your spouse’s existing marriage at the time of your marriage, the court may grant an annulment.
Mental Incapacity: The courts have held that persons who lack the mental capacity to understand that they are getting married should not be bound by marriage. Incapacity can result from a mental handicap or from intoxication. For examples, couples married by a Reverend Elvis while drunk in Las Vegas often seek annulments on the grounds of incapacity.
Incest: New Jersey law prohibits all marriages between parents and children, including grandparents and grandchildren of every degree; between brothers and sisters of the half as well as the whole blood; and between aunts/uncles and nephews/nieces. (You can marry your first cousin in New Jersey.) Any incestuous marriage would be subject to annulment.
Fraud: Fraudulent misrepresentations made by one spouse to another before a marriage can provide grounds for an annulment on the theory that the fraud affects the validity of consent to the marriage.
New Jersey cases require that the premarital fraudulent misrepresentation relates to a vital or essential part of the marital relationship and that the spouse seeking annulment has relied on the misrepresentation.
Typically, a spouse will file for an annulment on the grounds of fraud when:
- One spouse lies about his or her desire or to have children.
- One spouse lies about his or her addiction to drugs or alcohol.
- One spouse is an immigrant and uses the other spouse to stay in the country.
- One spouse misrepresents his or her religious beliefs and that factor was an essential part of the spouse’s decision to get married.
- A woman fails to advise her spouse at the time of their marriage that she is pregnant by another man.
- One spouse threatened the other with serious violence to induce the other spouse to agree to the marriage.
- Annulments are generally rare, but a request for an annulment may be more likely to succeed in cases of short marriages with debts and assets to divide.
- New Jersey courts have, however, granted some annulments in complex cases involving children and alimony.
Mediation as an Alternative to Litigation
In the process of divorce mediation, a couple will try to reach their own settlement by talking through their concerns with an impartial mediator, retaining more control over their outcome and avoiding the uncertainty of the courts. Before you consider mediation, you should understand three central concepts about the process:
- Divorce mediators do not give legal advice; they do not and cannot represent either party.
- Divorce mediators have no power to make decisions. As a “neutral third party,” the mediator assists the divorcing parties in arriving at their own mutually acceptable tentative resolution of all issues.
- At the end of a successful mediation the mediator will prepare a Memorandum of Understanding (“MOU”). The MOU is not binding. Each party should review the MOU with his or her New Jersey divorce attorney, and, if acceptable, incorporate the terms of the MOU in the binding Settlement Agreement that will legally end the marriage.
Mediation might not be the best way to start off divorce proceedings, but it can offer an opportunity for couples to eliminate or narrow their differences. There are few reasons you should consider mediation:
- Mediation is less expensive than going to court.
- Mediation is quicker than going to court.
- Mediation is less adversarial than going to court. That means less stress for you. It also means you and your spouse will have an easier time co-parenting if you have any children.
- Mediation allows you greater control over your outcome.
- Mediation is confidential. Any sensitive information you or your spouse disclose in court would be public.
- Spouses who mediate their issues are more likely to comply with the terms of their separation agreement than with the terms of a court order.
However, if either party hasn’t provided all the necessary financial information, or if either party is obstinate, unwilling to compromise, or incapable of making tough decisions, mediation won’t work.
- Mediation is a more cost-effective way to arrive at an agreement via peaceful and amicable means, in a situation where either party is willing to leave the past behind, look forward and settle quickly.
- Mediation, while a smart choice, is ideal only for some couples, and not for others.
If you or a loved one is looking for alternatives to divorce and litigation, please give Salvaggio Law Group a call to help you proceed with a course of action that is most suited for your personal circumstances.
David F. Salvaggio, Esq. – Founder & Senior Attorney
Email: firstname.lastname@example.org | Phone: (973) 455-1220