The Basics of Annulment in New York

Overview of Annulment

Like a traditional divorce, an annulment ends a marriage. However, an annulment is a legal proceeding that goes further by declaring a marriage invalid or void through a court order. In other words, it's as if the marriage never happened.

Some individuals may want an annulment to avoid any stigma they believe is associated with divorce. This article covers only civil annulments, not religious annulments, which only a church or clergy can grant and have no legal effect on marital status.

What are the Grounds for an Annulment?

New York recognizes five grounds for annulment:

• one or both spouses were under age 18 at the time of the marriage
• one or both spouses were unable to consent to the marriage due to mental incapacity
• either spouse is physically unable to have sexual intercourse
• either spouse was incurably mentally ill for at least five years, or
• either spouse obtained marriage consent by duress, coercion, or fraud. (N.Y. Dom. Rel. Law § 140)

What Happens When the Underage Spouse Reaches 18?

While the fact that one or both spouses were underage at the time of marriage constitutes grounds for an annulment, if the spouses continue to freely live together (cohabitate) after both reach the age of consent, the marriage no longer qualifies for an annulment. If you or your spouse want to end your marriage, you'll need to follow the process of a traditional divorce. (N.Y. Dom. Rel. Law § 140 (b).)

What Happens if a Mentally Ill Spouse has a Period of Sound Mind?

A spouse can request an annulment from the court if a doctor or court declares the other spouse mentally ill for at least 5 years. The court also allows a concerned family member to request an annulment on behalf of the incapacitated individual.

However, if the mentally ill spouse has a period of sound mind and the spouses continue to cohabitate as a married couple, the court considers the marriage valid and waives the grounds of mental illness, even if the mental illness returns. (N.Y. Dom. Rel. Law § 140 (c)(f).)

Can a Spouse Waive Fraud?

Although fraud is grounds for an annulment, the spouses can waive it by continuing to live together after discovering the fraud. Specifically, in a situation where fraud would be sufficient for an annulment, if the innocent spouse discovers the fraud and does not immediately separate and live apart from the offending spouse, the court may declare that the innocent spouse waived fraud and ratified the marriage, preventing an annulment on fraud grounds.

A spouse can also waive fraud by acquiescence (agreement), such as in a case where a spouse has refused to comply with a promise to have children, and the otherwise innocent spouse was aware contraceptives were being used by the offending spouse. (Gardner v. Gardner, 283 A.D. 1004, 130 N.Y.S.2d 859.)

Will the Court Waive My Duress Claim?

It depends. New York law does not allow the court to annul a marriage on the ground of force or duress if, at any time before the marriage, the spouses voluntarily lived together as a married couple. (N.Y. Dom. Rel. Law § 140(e).)

How Do I Get an Annulment?

An annulment in New York requires a trial and hearing before a judge. Unlike a divorce, which a judge can grant upon written or sworn testimony without a trial, an annulment will require the filing spouse to prove at least one of the grounds in court. You must submit paperwork to the court and then bring evidence, including documents and witnesses that can support your claim for annulment.

For more specific information regarding the procedure to obtain an annulment and what to expect at a hearing, please contact a local New York family law attorney for assistance.

Effects of an Annulment on Children and Support

In New York, although an annulment results in a voidable marriage, it does not affect the legitimacy of children born during the marriage. Simply, children born while parents are married in a lawful state or religious ceremony are considered legitimate heris, even if the court later annuls or voids the marriage.

Additionally, an annulment does nothing to affect custody or child support and instead establishes a presumption of paternity—meaning, the court presumes both parents are biological parents of any child born during the marriage. (N.Y. Dom. Rel. Law § 24.)

Resources

For a complete list of the grounds and effects of an annulment proceeding in New York, see N.Y. Dom. Rel. Law §24 and §140(b-e). If you have additional questions on the requirements or the process for annulment in New York, contact an experienced family law attorney near you.