In an annulment, a court declares a marriage to be invalid. A divorce accomplishes the same end as an annulment in bring the marital relationship to an end. However, a divorce presumes that the couple had a valid marriage under New York law. Thus, the grounds for a divorce differ from those for an annulment. Further, your church or other religious organization may not allow or recognize a second marriage by you unless a court has annulled the first one.
If you’re contemplating how to terminate your marriage, consult one of our Bronx annulment lawyers to determine your eligibility and your options in seeking an annulment.
The New York Domestic Relations Law §140 sets out the grounds for obtaining an annulment:
•Bigamy: A bigamous marriage is one where one of the parties has a living spouse and that previous marriage remains in force. That is, the parties in the prior union have not divorced or obtained an annulment of it.
•Party below age of consent: A court may annul a marriage where one of the parties did not reach age of consent at the time of the purported marriage. In New York, the age of consent now stands at 18 years of age. A party who is age 17 years old must get permission from the parents or the court. Those under the age of 17 are deemed to lack the ability to consent to marriage. However, a court will not annul a marriage if the underage party reaches age 18 and continues to live with the spouse as if married.
•Fraud, force or duress: A fraudulent marriage typically involves a false statement to induce one party to marry another. Such false representations may involve pregnancy or a stated desire to have children when, in fact, the inducing spouse does not want children or knowingly cannot have children. Also, a marriage whose purpose is to secure status for a spouse as a legal immigrant in the United States may be annulled as fraudulent. However, a court will not annul a marriage based on force or duress if the parties, before the annulment lawsuit, voluntarily live together as spouses. Also, where one party voluntarily lives with the other knowing fully the facts constituting the fraud, a court will not annul the marriage.
•Physical Incapacity: New York Domestic Relations Law §140(d) provides that an incurable physical inability of a spouse to have sexual intercourse may render a marriage voidable. Where the party who lacks the ability seeks the annulment, that party must show that he or she did not know about the inability or that the condition was not curable. A party relying on physical incapacity for annulment has only five years after the date of marriage to start the lawsuit.
•Mental Incapacity: This ground refers generally to at least one of the spouses being mentally retarded or mentally ill at the time of marriage. Under New York Domestic Relations Law §140(c), the mentally incapacitated party or a family member or relative with an interest in avoiding the marriage can ask for its annulment.
•Incurable Mental Illness Lasting Five Years: A court can annul your marriage if your spouse has an incurable mental illness that does not end in under five years, under New York Domestic Relations Law §140(f).
An annulment does not extinguish all aspects of the marriage that has been declared void. Generally, children born during the parties’ marriage are deemed legitimate. An annulment does not undo such legitimation. (New York Domestic Relations Law §24). As a result, the parties to an annulled marriage may seek custody of the child and retain the legal duty to support the child.
Further, the parties can have property acquired by the parties during an annulled marriage divided just as can parties in a divorce. Under New York property division laws, sometimes referred to as “equitable distribution,” courts classify property as either “marital” or “separate.” One of our Bronx annulment lawyers can help you determine your rights to specific property as you seek to annul the marriage.
While annulment and divorce achieve generally the same legal end, you may have reasons for choosing one over the other. Our Bronx annulment lawyers stand ready to aid you in deciding whether to pursue an annulment or divorce.
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