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.

Islamic Marriage Contracts and Divorce

An Islamic marriage contract can also be referred to as “Mehrieh” or “Mahr”. (Also known as Katb el-Kitab in Arabic and Nikah-Nama in Urdu.) A Mehrieh is a formal, binding contract considered an integral part of an Islamic marriage, and outlines the rights and responsibilities of the groom and bride or other parties involved in marriage proceedings.

I have encountered several legal issues involving Mehrieh agreements in my New York divorce practice, mostly with Iranian clients, but also clients from Egypt and Turkey. I have found that for the most part, Islamic marriage contracts are treated as prenuptial agreements in Court. In many Mehrieh agreements, the groom agrees to pay a sum of money to the bride upon her demand (often valued in terms of solid gold coins or other bank guaranteed currency). The Mehrieh often includes symbolic gifts such a mirror, a copy of the Koran, objects of silver, or a carpet.

Before the wedding (the “Aghd”), the groom and the bride’s father negotiate the Mehrieh, and it is signed before witnesses. In Sunni Islam, a marriage contract must have two male witnesses. In Shia Islam, witnesses to a marriage are deemed necessary, but in case they are not available, then the bride and groom may enter into the contract between themselves.

Upon the civil divorce, the Mehrieh will be enforced as a contract. As long as the contract is witnessed properly, it is usually enforced in New York Courts. Due to the very high price of gold coins recently, I have seen Mehrieh agreements that are worth close to a million dollars!

In Islam, in order to get a religious divorce, the parties must cooperate together and appear simultaneously before a religious tribunal to make a formal request. In the Islamic faith, the husband and wife must go to the mosque together. A portion of the Koran is read, and the religious divorce is granted officially. (The process for a Jewish divorce (a “Get”) is very similar.)

Even if there is a civil divorce that gets finalized through Judgment in the United States, without a religious divorce, an observant Islamic woman would not be able to remarry. Even worse, if a woman travels back to her native country, without having obtained her religious divorce, a husband can legally withhold permission for her (or her children) to leave the country. It can even subject the woman to penalties, even death, if there are charges of adultery against her. Therefore, it is critical to obtain both the civil and religious divorce.

For Muslims, to get a religious divorce that will be recognized in Iran, the parties must appear before an embassy, which creates a difficulty since the United States does not have an Iranian embassy. Therefore, the parties must appear at the Pakistani Embassy in Washington DC, which has an “Iranian Interests” department.