Divorce vs. Annulment in New York State
The terms “divorce” and “annulment” are sometimes used interchangeably, but they mean very different things. A divorce is the dissolution of a valid, legal marriage. Once a divorce decree is obtained, the partners resume their pre-marriage status as single people. An annulment, on the other hand, is a legal declaration that the “marriage” never existed in the first place; in the eyes of the law, such a purported union is and always was a “nullity.”
Now that New York is a no-fault state, obtaining a divorce is easier than getting an annulment. The no-fault ground for divorce in New York is “irretrievable breakdown,” the proof of which is merely a sworn statement that the marriage relationship has been irretrievably broken for at least six (6) months prior to the commencement of the divorce action. It is an intentionally vague standard that is easily proved, and difficult if not impossible to defend against. With annulment actions, however, it is necessary for the party seeking annulment to prove in court that specific conditions justifying the annulment actually exist, along with additional or “corroborative” proof of those conditions. This can put a burden on the party seeking annulment that one does not experience when pursuing a simple No-Fault divorce.
Legal Annulment in New York State
Annulment is defined in Domestic Relations Law §140. Any one of the following conditions can, if present, render the marriage a nullity:
- Bigamy/Polygamy or Incest. If it turns out that one or the other marriage partner had a living spouse to whom he/she was married at the time of the new marriage, the new marriage can be annulled. Incest is also grounds for annulment. Individuals who are blood-related, including parents and children, grandparents and grandchildren, uncles/aunts and nieces/nephews, and siblings cannot legally marry in New York State. (Cousins, however, are not prohibited from marrying under New York State law.)
- One or more parties was under the age of consent. Underage people in New York State can only marry if certain strict conditions are met. The age of consent in New York is currently 18 years; those between 16 and 18 may only marry provided they obtain the consent of both parents; those under 16 may only marry if a judge has consented to the union. If these conditions were not met at the time of the marriage, the marriage can be annulled.
- Developmental Disability or Mental Illness. An annulment can be obtained if one or both parties is developmentally disabled, by any person who has an interest to avoid the marriage, even after the death of the afflicted individual. Mental illness of a party is also a ground for annulment, and an action to annul on this ground may also be brought by a “next friend” of the mentally ill person at any time, even after death. More commonly, an annulment action on mental illness grounds is brought by the other spouse, provided he/she did not know of the mental illness at the time of the marriage. It can even be brought by the mentally ill individual should he or she be returned to sound mind, provided that the parties did not “freely cohabitate” thereafter.
- Incurable Physical Incapacity. Incurable physical incapacity to “enter into the marriage state,” is also a ground for annulment. It must be brought within five (5) years of the marriage and can be brought by either spouse if the incapacity is incurable. If brought by the spouse afflicted by incapacity, he or she must have been unaware of the incapacity at the time of the marriage or, if aware, unaware that the affliction was incurable.
- Marriage Consent was obtained through Fraud, Duress, or Coercion. A marriage annulment may be obtained in instances where one party has deceptively misrepresented important facts about his/her person, including those relating to his/her willingness to have children, sexual orientation, legal immigration status, criminal history, and/or other important facts, including falsely claiming that one is pregnant when one is not. Similarly, “shotgun” marriages into which either party was induced through force or duress (threat of force) may be annulled.
However, New York State law imposes an important condition to this rule:
…a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud.
In effect, New York State requires that the victim of fraud, duress or coercion cease voluntary cohabitation with the other party as soon as possible after he/she learns of the fraud. If this does not occur, the action for annulment may fail.
- Marriage Improperly Solemnized. In New York State, the ability to legally marry people is limited to a set of individuals listed in Chapter 14, Article 3 of New York’s Domestic Relations Law. Any marriage that was solemnized by individuals other than those included in this list may be declared void.
A legal annulment is not necessary to obtain a religious annulment in the Catholic faith. It will also likely not satisfy the requirements of religious authorities for whom the institution of marriage is a sacred instrument. If you are a member of the Catholic Church and wish to annul the void marriage in order to marry within the church in the future, it is necessary to file a petition that will be adjudicated by church clergy in a formal hearing. In Judaism, a “Get” must be obtained in order to remarry within the faith.
A Legal Annulment Does Not Absolve One of Obligations Undertaken During the Marriage
While a successful annulment “wipes the slate clean” by declaring the marriage void, it is important to note that the annulling party may still be obliged to assume his/her share of legal obligations that are the product of the union. For example, a partner who successfully annuls a marriage on the basis of incurable mental illness may be obliged to provide support for the ill party. Similarly, the court may impose provisions obligating a marriage partner to provide child support, alimony, and/or the equitable distribution of property.
If you are contemplating an annulment, contact us to consult with an experienced matrimonial attorney who is well-versed in the nuances of New York State law to achieve your best outcome.