As a Family Law Attorney practicing in Suffolk County and Nassau County, Long Island, I am often asked by my clients about getting a marriage annulment. While a finalized divorce can end a marriage, an annulment can result in the marriage being declared void or invalid by a court order. Essentially, an annulment is different from a divorce in the sense that it is as though the marriage never took place in the eyes of the law. Keep in mind that obtaining a legal annulment does not constitute a religious annulment, which can only be granted by a church or clergy.
In certain cases, an annulment is the appropriate resolution of a marriage when a spouse can prove that the marriage was never legally valid. New York Domestic Relations Law Section 140 sets forth the grounds for and effects of annulment.
On Long Island, New York, a divorce can be granted upon the written, sworn testimony of the parties without a trial. In contrast, an annulment requires a hearing before a judge. One of the very specific grounds for annulment must be proven in court. For this reason, an annulment is more difficult to obtain for most marriages.
While a divorce can be based upon “irretrievable breakdown” in the marriage or a consensus that the marriage is unsuccessful, an annulment will not be granted based solely upon the parties’ desire for an annulment. Annulments can only be granted by court in Suffolk County or Nassau County in very specific circumstances. For an annulment, one of the below grounds must be conclusively proven in court.
Grounds for Annulment in Nassau County, Suffolk County, Long Island
There are five grounds upon which an annulment can be granted in New York:
1. One or both spouses were under the age of 18 at the time of the marriage. In New York, the marriage of any person under the age of 18 requires the written consent of both parents. Marriage of any person under the age of 16 needs the additional approval by a judge. If indeed one of both spouses was underage and the legal requirements were not met, this ground for annulment is waived if the spouses continue to cohabitate or live together after both have reached the age of 18.
2. One or both spouses were unable to consent to the marriage due to mental incapacity. For example, if a spouse could not give actual consent to the marriage because of lack of understanding of the nature, effect, or consequences of marriage as a result of some mental incapacity.
3. Either spouse is physically unable to have sexual intercourse. Physical capacity is needed to consummate a marriage with sexual intercourse. If the parties did not know of the physical incapacity at the time of the marriage, this can be a ground for annulment so long as the annulment is requested within the first five years of marriage.
4. Either spouse was incurably mentally ill for at least five years. If the spouse that suffers from mental illness has a period of sound mind and continues to freely cohabitate throughout this time, the marriage may be considered ratified. Mental illness as a ground for annulment may be waived if this is the case.
5. The marriage consent was obtained by duress, coercion, or fraud. If a spouse entered the marriage due to pressure or fraud. A fraudulent marriage may occur when a spouse entered the marriage for the purpose of obtaining immigration status. Another example is where a spouse claimed to be pregnant in order to induce the other party to marry them. These and similar situations may constitute a fraudulent marriage subject to annulment.
Legal Annulment is Different Than Religious Annulment
A marriage can also be declared to be a nullity by a court. This means that the marriage is automatically void and will not be legally recognized. While the record of marriage and annulment will still exist, the parties can consider themselves to have never been married. This can occur in the case of incestuous marriages or bigamous marriages, as these types of marriages are not legal in New York. A spouse in a void marriage can bring an action in court asking for a declaration of the nullity of a void marriage.
Even after a marriage is annulled and the spouses consider themselves to never have been married, children of the marriage will still be considered legitimate children of married parents. Parents will still be legally responsible for the children in terms of custody, visitation, and child support, and will be subject to relevant laws. Furthermore, the annulled marriage will still be subject to the state laws regarding division of marital property.
Contact Long Island Family Law Attorney for Information on Annulments in Nassau County and Suffolk County
If you are in Nassau County, Suffolk County, or the five boroughs of New York City, and you have questions about annulment and whether your marriage may be void or voidable, reach out to the Office of Hornberger Verbitsky, P.C. for a free consultation. Call us at 631-923-1910 or fill out the short form on this page and we’ll get right back to you.
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