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

by Robert E. Hornberger, Esq | Jul 22, 2014

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

Can I Date While My Long Island Divorce is Pending?

by Robert E. Hornberger, Esq | Jul 15, 2014

Maybe you were the one who wanted the Long Island divorce, or maybe you have come to terms with the fact that you and your spouse are not capable of reconciliation and you want to begin to move forward with your life. If you wait for your divorce to be finalized, you may feel that your life is on pause for months or years. You also consider the fact that dating would inevitably boost your self-confidence and distract you from the negative aspects of the situation at hand. So, you have decided to consider dating while the divorce action is pending, but you are not sure if that is the best idea given the circumstances.

What are Some Advantages of Dating While Going Through a Divorce?

• Negate feelings of loneliness: whether your marriage lasted 5 years or 35 years, you were rarely alone during that time period. It is difficult to have constant companionship and someone to watch television with on a rainy Sunday afternoon, and then suddenly find yourself lying on the couch alone. Finding a new partner, so long as you are both looking for the same type of relationship, will likely fill a void in that area of your life.
• Meeting new people: for the duration of your marriage, you and your spouse likely socialized with the same group of people. Unless one of you got a new job or joined a new group or activity, it is unlikely that you ventured out into different social groups as a couple. When you begin dating, you will meet this person’s friends and acquaintances, and therefore your social horizons will expand.
• Enjoy getting involved in new activities: similar to rarely meeting new people, it is likely that you and your spouse both knew the activities the other enjoyed, and that is how you both spent your time together. While dating, each person you date has different interests, and you may find yourself at an art museum one day and white water rafting the next. It is important to be open to trying new things, because even if the relationship does not work out, you may find an interest you never knew you had.

What are Some Disadvantages of Dating While Going Through a Divorce?

• Emotions: this one seems to be self-explanatory. Regardless of whether you wanted the divorce or not, a divorce is a major life change, bound to carry with it a range of emotions. Remember your first break up, likely your high school or college sweetheart, and how afterwards it was so easy to latch on to the next person who looked in your direction. You are likely going through a lot of those same feelings right now during your divorce. If you do decide to date, make it a point to realize that the most realistic cause of anything you feel toward this new partner is likely transference of your feelings toward your ex-spouse. Do not jump too quickly into love, or on the other hand, mistrust. You need to enter the dating world with a clean slate, emotionally and mentally.
• Child custody agreements: if you and your ex-spouse are battling over child custody, dating may not be in your best interest until the divorce is settled. Your ex-spouse may use your dating activity as leverage against you to support his or her claim as to why you should not be granted custody, arguing that he or she is uncomfortable with you having strange people around your children. If you do decide to date, you must be sure to be open and candid about the situation, and be sure that nothing you are doing makes your ex-spouse uncomfortable with regards to the children
• Your children: a divorce is difficult not only on you, but on your children as well. They are going to need more attention and support than ever before right now. Everyone is excited at the beginning of a new relationship and it is easy to forget about other responsibilities. If you are the type of person who tends to put a relationship before everything else, dating my not be in the best interest of your children at this time.

The Decision Is Up To You, But Your Long Island Divorce Attorney Can Help

As always, the decision as to whether or not you will date while your divorce is pending is completely personal, and each situation is different. If you do decide to date and you have a child custody agreement pending, you should discuss the potential implications of this with your divorce attorney, who will be able to give you the best guidance in this area. Contact the caring and compassionate divorce attorneys at Hornberger Verbitsky, P.C. for a complimentary consultation at 631-923-1910.

Is Uncontested Divorce the Best Option for Me on Long Island?

by Robert E. Hornberger, Esq | May 13, 2014

Divorces, which have become more common on Long Island, are rarely simple and can be very complicated. The idea of an Uncontested Divorce may have crossed your mind, and you may be wondering what exactly it is, and if your situation would fall neatly into this category.

Uncontested divorces are a special breed, and while the following will attempt to explain what must be done to qualify, the category is narrow.

Contested Divorce Is Common on Long Island, NY

Many American couples are faced with a divorce go through a Contested Divorce. In this instance, either only one partner wants the divorce, or both want the divorce but cannot agree on the major issues such as child support and custody, division of property, or finances. In these cases, both partners require their own divorce attorneys who will attempt to assist the couple in reaching a mutual agreement, and if that cannot be done, the couple will need to resort to the court system.

Contested = Nassau County or Suffolk County Court

Because a contested divorce tends to end in the court system, it has the tendency to be lengthy, and at times expensive. These negative factors may push couples toward agreement simply because they do not want to go court, and if they agree, they will be able to partake in an uncontested divorce, and simply sign the agreement and be done with it.

Major Life Decisions Have Long-Lasting Implications

However, we advise you not to not rush into any major life decisions to save time or money in the short term; the decisions you make in this divorce are binding and will affect the rest of your life, and the life of your children. While it may seem like instant gratification to simply agree to something to avoid the process, you may wind up wishing you had thought about it more carefully three years down the road.

Advantages of Uncontested Divorce

An uncontested divorce on the other hand, is available to those couples that find that while they may love each other, they just simply do not get along and cannot live together as a couple. In an uncontested divorce, the couple must agree upon why they are seeking a divorce, child custody and support, and the division of property. Generally, because both parties agree as to why they are divorcing, the ground for divorce is simply irretrievable breakdown of the marriage, which was added to New York’s Domestic Relations statute in 2010.

Equitable Distribution of Property in Your Divorce

You and your partner will have to agree on how your marital property will be divided. If you cannot reach an agreement and your case goes to court, property division in New York is governed by the Law of Equitable Distribution. While you may believe that this guarantees you an equal share of any marital property (any property acquired during the marriage unless by gift, inheritance, the compensation or in exchange for otherwise separate property) that is an incorrect assumption. Equal is not the same as Equitable. Rather, equitable distribution requires a fair distribution of the property, taking into consideration the specific facts and circumstances of both you and your partner.

Child Support and Custody Issues

An uncontested divorce is only possible if all issues regarding child custody and support are mutually agreed upon. This may be one of the most difficult topics for any couple facing a divorce, and needs to be discussed both thoroughly and thoughtfully with your partner.

Uncontested Divorce Doesn’t Work for You? Don’t Panic

If you or your partner desire an uncontested divorce but after further consideration and a brief reading of this article you realize that this may not be practical for your and your spouse, do not panic. Lack of agreement between you and your partner may require a contested divorce, which is naturally a more challenging experience, but does not have to be more emotionally charged than it already is.

Divorce is Only As Complicated as You and Your Partner Make It

A divorce is only as complicated as the relationship between the parties. You are in the best position to know how emotionally or financially difficult your divorce will be for you and your partner. While you may have anger toward your spouse and find yourself demanding things in the agreement out of spite, stop thinking about your spouse and start thinking about yourself. You and your children are the most important parties involved, and throughout what may be one of the most difficult times of your life, it is important not to lose sight of what truly matters.

Need Help with Your Contested or Uncontested Divorce?

The experienced Long Island divorce attorneys and divorce mediators at Hornberger Verbitsky, P.C. are thoroughly familiar with all the options available to you for both Contested and Uncontested Divorces. From traditional litigation in Nassau County or Suffolk County court, to Divorce Mediation in our calm and comfortable offices in Melville, NY, to all other aspects of conflict resolution related to divorce, we have the successful track record to ensure your divorce is as economical and low-stress as possible. To learn more about the options available to you for your contested or uncontested divorce, give us a call at 631-923-1910 for a complimentary consultation to discuss the specifics of your case. You’ll be glad you did.

Beware: Social Media Can Hurt You in Your Divorce in Nassau and Suffolk on Long Island, NY

by Robert E. Hornberger, Esq | May 6, 2014

If you’re considering a divorce on Long Island, be careful what you post on any social media channel. Actions you take on such social media properties as Facebook, Twitter, Google+, Instagram, or any other social media accounts you may have (including dating websites!) can have important consequences in divorce court in Nassau or Suffolk County.

For many people, social media puts all the details of your life within a mouse click of the rest of the world, and if you are not careful, you may be exposing more than you think or desire. Consider anything you do online, even if a “private message”, as public. If you’re doing something using the Internet, there’s a record somewhere of nearly every keystroke you make from behind your computer screen.

A recent case out of the Appellate Division, Third Department, Matter of Melody M. v. Robert M., highlighted just how dangerous social media can be while in the midst of a divorce.

A separation agreement provided that the father would have primary physical custody of the couple’s three young children, while the mother was permitted one weekday evening visit and visitation on weekends. Eventually, the mother sought a modification of the custody agreement, which the court rejected and awarded the father sole physical custody of the three children.

One of the provisions of the new court order, was a restraining order was issued against the mother, intending to prevent her from posting anything to or from her children on social media sites. Of great importance to the court’s determination to award the father sole physical custody of the children was the mother’s previous negative use of her Facebook profile.

Rather than use the site to keep in touch with and communicate with friends, she used the site as an outlet for her anger toward her oldest child, who also suffered from a mental illness. More specifically, she posted on Facebook that her child was an “asshole.” The court ruled that this use of Facebook was sufficient evidence “to justify the court’s issuance of the order of protection” and prevent the modification of the custody agreement.

This ruling out of the Third Department, should serve as a warning to anyone considering a divorce of the dangers of what may be a seemingly innocent Facebook post.

While the child’s mother likely posted the statement out of anger and frustration at her child, to post such comments to the mass public paints her in a negative light and calls her character into question. In acting in the best interests of the child, Nassau and Suffolk County courts will hesitate to grant physical custody of children to a parent that they feel have displayed questionable activities and morals.

Social media posts aren’t only important in child custody cases. Any aspect of your divorce, from property division to child support could be impacted by something you unwittingly posted on a social media channel. Consider how posting a picture of your new Mercedes might be perceived by the courts when trying to claim you need more child support or claim you can’t afford to pay more child support.

Important tips you should be aware of while using the Internet throughout your divorce:

• First and foremost, the safest option would be to delete all of your social media accounts. While you can control what statuses or pictures you post, you cannot control those of your friends or family and what they can post about you. As a pilot once told me as my plane landed in Las Vegas, “What happens in Vegas ends up on Facebook.”
• If you do not wish to delete your social media accounts, then you should look into the various privacy settings offered through each network. Facebook enables you to approve things others post before they appear on your page, and Instagram has the option of making your account completely private, so your pictures are only viewable to those you accept as “friends.”
• Only accept “friend requests” from people you know personally and, most importantly, trust unconditionally. While Facebook has the “People You May Know” feature, if you are going through something personal it is important to keep your life just that – personal. Just because your next-door-neighbor knows Sally Jane who is now requesting you to be her “friend” does not mean she wouldn’t be the reason you lose physical custody of your children.
• And finally, be smart about the use of these networks. Once something enters the Internet, it is there forever. You may post something out of anger, sadness, or rage, and delete it a few minutes later, but you do not know how many individuals saw that post within the 120 seconds of its existence.

While this may seem like a common sense list of tips, you would be surprised at how many individuals are tricked by what they perceive to be the “safeness” of the Internet.  You can be anything you want online, whether it is something good or bad, and at times people get carried away with the belief that the Internet is a separate realm from “the real world”. Try Googling yourself one day and you may be surprised at the personal information that pops up so quickly. While going through your divorce on Long Island, NY, you want to make sure that personal information is nothing that can potentially be used against you in Nassau or Suffolk County Court.

Have Questions About Social Media and Divorce in Nassau or Suffolk on Long Island, NY?

The divorce attorneys and divorce mediators at Hornberger Verbitsky, P.C. are very familiar with the latest decisions by the courts in Nassau and Suffolk counties on Long Island, NY. We can help you navigate the sometimes murky waters of divorce law and ensure your interests are protected to the fullest. If you have questions about your divorce, feel free to contact us at 631-923-1910 for a complementary consultation in our comfortable offices in Melville, NY or fill out the short form on this page and we’ll get right back to you.