Should I Get an Annulment? Or a Divorce?

In certain situations, it makes more sense to seek an annulment versus a divorce.

An annulment action in New York State is lawsuit filed in court seeking to dissolve a marriage on the ground that the marriage is voidable by court order based on certain grounds.

What is the effect of an annulment?

The main effect is that the parties may consider themselves to have not been married. In other words, they can truthfully say, "I was never married". There can still be custody and child support orders if there are minor children born during the marriage. There will not be an order of support. In addition, the Court can makes orders to distribute property.

What is the difference between annulment and divorce?

• An order of annulment means that one party has established that the marriage is not legally valid. A divorce, on the other hand, ends a legally valid marriage.
• As mentioned above, the Court cannot order spousal support if the marriage is annulled. No marriage equals no spousal support.
• The grounds for annulments are more difficult to establish than grounds for divorce. The process can be costlier and lengthier, but often it is worth it.

What are the grounds for annulment?

There are five grounds upon which a party to a marriage may seek to have the marriage annulled:

• Under age of consent—If either or both parties to a marriage are under 18, that party, one of his or her parents or guardian (or any other person the court allows) may seek to have the marriage annulled. The right to seek annulment on this ground ceases once the spouse at issue has turned 18. Annulment on this ground is granted at the discretion of the court considering all the circumstances of the marriage.
• Mental incapacity—If a party to a marriage is mentally ill or otherwise mentally incapacitated and was unable to give informed consent to the marriage, any relative with an interest in seeing the marriage annulled may do so while either spouse is alive.
• Marriage Not Consummated—An action for annulment may be brought by either party before five years have elapsed from the date of marriage if one party has a continuing physical incapacity that causes that person to be unable to have sexual intercourse. The action may be brought by the non-impaired person, or even the impaired person, so long as that person did not know of his or her incapacity at the time of the marriage.
• Force, duress, or fraud—An action for annulment may be brought by a party to a marriage who alleges that his or her consent to the marriage was obtained by force, duress, or fraud. Examples of fraudulent marriages include:
• Marrying to obtain immigration status (green card);
• Claiming to be pregnant to entice someone to marry;
• Claiming you want to have children when you really don't.

• Incurable mental illness for a period of five years or more—An action for annulment may be brought by either party to a marriage or anyone acting on his or her behalf where one party to the marriage has become incurably mentally ill, and the illness has persisted for five years or more.

My office offers a free consultation on these issues, and any other family law issue. Call (516) 773 8300, or Email: Jackie@lawjaw.com.