Can I Get My Long Island Marriage Annulled Rather than Divorce?

In your research and inquiry into New York divorce law applicable to your Long Island divorce, it is inevitable that you have stumbled across the words “annulment of a marriage”. You may have several questions, including:

1. What’s the difference between a divorce and an annulment?
2. Am I eligible for an annulment?
3. Why would I want an annulment?

In a nutshell, rather than simply ending the marriage, an annulment has the legal effect of declaring the marriage null and void as if the marriage never happened in the first place.

What are the Grounds for an Annulment?

New York’s Domestic Relations Law provides multiple grounds for an annulment of marriage, and a few are discussed below. The first important point to note is that some marriages are “void” while others are “voidable.” A marriage that is void is void from its inception and therefore is illegitimate. Because this marriage was never valid, it does not require an action for an annulment to be declared void, but most divorce attorneys recommend that one be commenced regardless. A marriage that is voidable on the other hand is a valid marriage that may be declared null and void with court action. However, as with any time the court is involved, if your marriage is “voidable” the court has the discretion to deny the action for annulment.

Marriages that are void at inception

1. Marriages with grounds in incest. An incestuous marriage is one between an ancestor and descendant, siblings, whether they are full or half siblings, and an aunt and nephew or an uncle and niece. While this marriage is not only void, the parties involved may face a fine or prison sentence upon solemnizing of the marriage.
2. Marriages by a person whose husband or wife by a former marriage is still living. In other words, this portion of New York’s Domestic Relations Law seeks to prevent bigamy. If your husband or wife was already married when you entered your marriage, it has the effect of making your marriage, the subsequent union, void.

Marriages that are voidable

1. One party is under the age of legal consent. In New York, the legal age of consent is 18. If one party is under 18 at the time of the marriage, the court has discretion to declare the marriage void. However, the court will not look solely to the age of the parties but rather, it will consider all relevant facts and circumstances of the marriage.
2. One party could not consent to the marriage due to lack of understanding. Both parties to the marriage must be fully capable of understanding what it means to “be married” and the consequences of entering such a relationship.
3. One party’s physical disability causes him or her to be unable to engage in sexual relations. This is only applicable if the physical condition is incurable. A party cannot file for an annulment based upon a temporary condition that temporarily interferes with martial relations. Furthermore, the party seeking the annulment could not have been aware of this condition upon the marriage, and if they were, they must have been under the assumption that it was curable.
4. One party consented to the marriage under conditions of duress, fraud, or force. The party asserting that his consent to the marriage was obtained fraudulently or through force or duress must bring this action. Furthermore, a court will not grant an annulment on these grounds if it is shown that the parties previously co-habitated as husband and wife.
5. One party has suffered from an incurable mental illness for at least five years.

What are the Effects of an Annulment?

If you are granted an annulment, the subject marriage will be declared null and void. However, in regards to child support and the division of marital property, your rights are the same. You may still be awarded maintenance and child support, your property is still divided pursuant to equitable distribution, and you can still enter into child custody and visitation agreements.

Annulments Are Not Easy. Seek Professional Help from an Experienced Long Island Divorce Lawyer

As you can see, the grounds for annulment are much more specific and difficult to prove than the grounds for a divorce. Therefore, if you feel your marriage may fall into one of the above categories and are curious about further differences between divorce and annulment, it is important that you speak with your divorce attorney so he or she can properly advise you of the next step to take. Contact the experienced and compassionate divorce lawyers at Hornberger Verbitsky, P.C. at 631-923-1910 for a free consultation to discuss your case.

For more information about Divorce on Long Island, visit this page: Divorce Lawyers Answer Questions about Long Island Divorce