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There is a lot of misunderstanding about what an Annulment, or marriage annulment is, and when it should be used. It is a legal holdover from a time when no-fault divorce was not available in New York. It is a process that significantly impacts a person’s marital status. Equitable distribution and maintenance (alimony) are still available to be awarded in an action for annulment. In this blog, I will discuss the pros and cons of annulment v. divorce. Spoiler alert: divorces are generally the better option.
What is Annulment?
Let’s start by describing exactly what an annulment is. It is a legal procedure that renders a marriage null and void. Unlike a divorce, which dissolves a legal marriage, it treats the marriage as if it never occurred. This can be crucial for individuals who wish to sidestep the societal stigma associated with divorce. But, I will repeat this several times, an action for annulment does not get rid of maintenance, equitable distribution, or issues of child custody and child support.
Grounds in New York
New York law provides several grounds to annul a marriage. Understanding these requirements is key in determining if getting one is possible in your case.
Age at the Time of Marriage
If one or both parties were under 18 at the time of marriage. However, this ground is waived if the parties continue to live together after turning 18, answering the question of how long can you be married and still get an annulment.
Mental Incapacity
A marriage can be annulled if one or both spouses lack the mental capacity to consent to the marriage. This ground can be invoked while the mentally incapacitated spouse is alive.
Physical Incapacity
If either spouse is physically incapable of consummating the marriage and this was unknown at the time of marriage. This request must be made within the first five years of marriage.
Consent Obtained by Force or Fraud
A marriage can be nullified if consent is obtained through force, duress, or fraud, or in cases of bigamy. Examples of fraudulent practices include marrying for immigration status or lying about the desire to have children.
Incurable Mental Illness
If a spouse has been mentally ill for over five years and the illness is incurable, an annulment can be sought.
The Legal Process
Annulling a marriage in New York requires a trial. This is unlike a divorce. New York is a no-fault divorce state, and the judge MUST always grant the divorce. The person filing must prove at least one of the grounds in court. A judge does not have to grant annul the marriage. In fact, if the person filing does not prove the case, then the judge won’t.
Notice, I use the term “person filing” and not “spouse”? That’s because an interested third party can file. Most frequently this is seen when an elderly relative marries a person whom it is alleged is taking advantage of them. In these cases, a child, or other relation will ask the court to declare the relative incompetent and void the newly entered marriage.
Submit the Necessary Paperwork
The process starts by filing an action in the Supreme Court. The other party is served and is given 20 days to answer. From there, unless one or the other party asks for a court conference, the matter will languish until that does happen. At the first conference, called the “preliminary conference” the court will set dates to exchange discovery. The conference will occur within 60 to 90 days of the request for it. This puts you around 100 days from the filing of the action.
The discovery will include the exchange of documents, perhaps depositions and motion practice. In addition to providing documents relating to the annulment, the court will also want disclosure on financial records to include, tax returns, bank records, pay stubs, business records, retirement accounts, etc. In other words, an exchange of all the financial documents required in a divorce. Again, in an annulment, the court will issue orders for equitable distribution of property and post-divorce maintenance (alimony).
Prove Your Grounds
The next step involves gathering evidence to support your grounds. This can include documents, witnesses, or medical reports.
Discovery can be very expensive as you will have to pay your lawyer to conduct it. There may also be motion practice as the other side may not be willing to voluntarily turn over documents.
Attend a Hearing
Finally, a hearing before a judge is mandatory. The judge will review the evidence and decide whether an annulment should be granted.
The trial will be expensive. Anytime your lawyer enters a courtroom to try a case, it will be expensive. If it is granted, then you will still need to deal with equitable distribution, maintenance, as well as custody and child support.
Effects of an Annulment
An annulled marriage is considered void, as if it never happened. This is what is meant by an annulled marriage. However, this does not affect the legitimacy of children born during the marriage. Both parents are presumed to be the biological parents of any children born during the marriage.
Additionally, the court can make orders for custody, visitation, and financial support of minor children.
Also, the court can distribute marital property fairly between the former spouses. That means, even if an annulment is granted you may still have to divide houses and bank accounts acquired during marriage. Even retirement assets acquired during marriage may be divided.
Why Annulment is Difficult: Considering No-Fault Divorce
While the annulment, process may seem like a clean way to end a marriage, it’s not always the best option. Proving the grounds for an annulled marriage can be complex and requires a trial, making it a lengthy and potentially expensive process.
In contrast, a no-fault divorce allows spouses to dissolve their marriage without assigning blame. This can make the divorce process smoother and less contentious.
The Recurring Myths
There are two recurring myths about annulment. One is that the winning spouse will be vindicated. While I realize that a person may be hurt if deception was practiced, under the law, there is no “vindication.” There is only a legal result and a hefty legal bill. My advice is do not unnecessarily increase your legal bills, and the time to resolve the litigation merely because you want emotional satisfaction. Emotional satisfaction is moving on with your life, not paying for your lawyer’s new car.
The second is that with an annulment there is no equitable distribution, post-divorce maintenance, or other orders. The false belief is that an annulment is like an eraser. This, as I have pointed out many times is utterly false.
When is an Annulment a Necessity?
As I have discussed above, there are times when a third party will intervene. One example is when underage children marry. In that case, the parents can file to annul the marriage.
The second, and more common situation, is the mentally incapacitated person who gets married. Here, if a guardian has already been appointed, the guardian will apply for the annulment. If no guardian has been appointed, the relatives will move to get a guardian appointed
Conclusion
Understanding the annulment process and the annulment laws in New York, including both religious annulment and legal annulment, is crucial when deciding how to end a marriage. While it may appear that an annulment can provide a fresh start, it’s not always the easiest or most practical solution.
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