People get married every day, and most go on to enjoy married life. Some though realize that parts of the marriage or their spouse are not as originally portrayed. They choose to walk away. At that point, there are two ways to get out of marriage, through a divorce or an annulment.

While divorce is a more common solution for dissolving a marriage, annulments do occur from time to time. The grounds are more stringent and the requirements are tougher, but there are some advantages to getting an annulment.

If you are considering annulment in New York, here’s what you need to know.

What is an annulment?

Like a divorce, an annulment ends a marriage, but with a significant difference. Where a divorce ends the marriage right where it is and recognizes the marriage as valid from the start, an annulment determines that from the beginning the marriage was not valid..

People who don’t believe in divorce or reject divorce based on cultural or religious grounds may gravitate to annulment as a convenient alternative since it is not technically a divorce but it does end the marriage. This usually doesn’t work out well for them though because the state of New York has only very limited grounds for granting an annulment.

What are the grounds for annulment in New York?

There are five grounds for annulment in New York. The person who wants to have their marriage annulled must meet at least one of those grounds. Even if the marriage was valid when the marriage first took place, the court can find that the union is no longer valid and grant the annulment.

These are the five grounds for annulment in New York:

  • One or both parties were too young to give their consent to marry. If a person is younger than 18, both parents must give written consent for the child to marry. If a person is younger than 16, a judge must grant approval for the child to marry. If the requirements have not been met, the spouse who was underage at the time of marriage can seek an annulment.
  • One of the spouses lacked the mental capacity to give their consent to marry at the time of the wedding. A spouse who married someone who is mentally incapacitated or mentally ill at the time the marriage took place can seek an annulment.
  • A spouse lacks the physical capacity to consummate the marriage. If either spouse is not able physically to consummate the marriage by engaging in sexual intercourse and the other spouse did not know about the issue when the marriage took place, there is a possibility that the marriage may be annulled, but it must be requested within the first five years of the marriage.
  • The spouse consented to the marriage due to fraud, duress, or force. If the spouse got married because they felt pressured, threatened, forced, or through fraud, they may be able to get an annulment. Some types of fraudulent marriages include:
    • Marrying for a green card (immigration status)
    • Deceiving someone into marrying the person by claiming to be pregnant
    • They don’t want children but claim that they do
  • One spouse has a mental illness that is incurable and has had it for at least five years. If one spouse is mentally ill and it has been determined by medical professionals that it cannot be cured, and the illness has been consistent for more than five years, the other spouse may be able to get an annulment.

What is the difference between an annulment and a nullity?

While an annulment involves a legal marriage that remains legal until an annulment retroactively renders it invalid, a nullity asserts that the marriage was not legal from the start. A nullity means that the marriage is not valid, was not valid, never has been valid, and could never be valid. These are the grounds for nullity:

  • Incest. The spouses are related to each biologically in one of these ways:
    • Siblings
    • Descendants such as parent and child or grandparent and grandchild
    • Aunt to nephew or uncle to niece
  • Bigamy or polygamy. One or both spouses, at the time of their marriage, were legally married to someone else who was not deceased.
  • Improper solemnization. Any marriage ceremony must be performed by someone who is officially allowed to perform it. Improper solemnization means that the person who officiated the ceremony was not officially permitted to do so. New York allows certain officials to solemnize a marriage. This includes:
    • A minister or member of the clergy
    • A county executive
    • A federal or state judge sitting in New York State (a retired judge can sometimes perform marriage ceremonies as well)
    • A senior leader of one of New York’s Societies for Ethical Culture
    • A mayor of a village or city
    • A recorder, city magistrate, police justice, or police magistrate of a city

Why would you get an annulment instead of a divorce?

If an annulment meets the requirements of the State of New York, there are certain advantages. An annulment treats the marriage as if it never happened. There is also no waiting period for spouses who wish to get an annulment. It is terminated immediately. There are fewer issues to deal with.

In some cases, people of certain cultures or religions may seek an annulment because it does not carry the societal stigma that divorce does in their circles. While this is not a valid ground for annulment, it is a reason that a person may try to get an annulment instead of getting a divorce.

Civil annulment vs. religious annulment

A civil annulment legally ends the marriage in the eyes of the court. It must meet the legal grounds for annulment and when it is over, the marriage is legally terminated like it never happened.

A religious annulment can only be granted by clergy or a church, but it has no legal effect on the marriage. In the eyes of the court, the couple is still legally married, meaning that they cannot remarry until they get a divorce or a civil annulment.

How do you get an annulment in New York?

An annulment is usually more complex than a divorce. The judge is not able to grant an annulment based on sworn or written testimony like he or she can in divorce court. The spouse seeking the annulment is required to prove a minimum of one of the grounds in court. They are required to submit paperwork to be filed with the court, and submit evidence which can include witnesses, communications, and documents.

Because annulment is so difficult, it is recommended that anyone seeking one should hire an attorney.

Questions about annulment in New York

Why would an annulment be denied?

The primary reason that an annulment would be denied is due to a lack of proper grounds. It is up to the plaintiff (the person filing for the annulment) to prove that the marriage had an issue that was so inherently wrong that the marriage should have never occurred or been granted.

When the annulment is denied, the couple can move forward in dissolving the marriage by seeking a no-fault divorce.

Can you remarry after an annulment?

After a civil annulment is granted, the marriage is legally dissolved. At that point, one or both spouses are free to marry other people.

Are custody, visitation, and child support ordered in an annulment?

If there are children involved when an annulment takes place, the court may decide on these issues. For the most part, child custody, visitation, and support are handled in family court. Property division may also be handled at a time that is different from the annulment.

How is property divided in an annulment in New York?

The court usually does not handle the division of property in New York annulment cases. Because there is no legal record of the marriage after an annulment, marital property no longer exists – or at least not as marital property.

The property is not subject to the laws governing marriage or divorce, so typically, properties, assets, financial holdings, and other marital property revert to the status they were before the marriage.

If you are seeking an annulment in New York, don’t try to do it yourself. At the very least, it is a headache that you would do well to avoid. Let the experienced, knowledgeable lawyers at The Litvak Law Firm take care of it for you. We have experience and a proven track record that shows we get results.

Call today at 718-989-2908 for your free consultation where we’ll discuss your case with you and talk about the next steps. Then leave the heavy lifting to us.