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Annulment in New York – how it works, period to file, how is it different from a divorce

annulment in new york, ny

Annulment in New York, NY is a court decree declaring that the marriage was never valid in the first place.

Annulment in New York, NY can only be requested based on specific grounds under Article 2 of Domestic Relations Law (DRL), such as bigamous marriage, incestuous marriage, underaged spouse, mentally ill spouse, physical incapacity to consummate marriage, and force, duress, or fraud.

Even if a marriage is annulled or declared void from the beginning, the children are still considered legitimate.

Period to File an Annulment

Void Marriages

Bigamous and incestuous marriages are void marriages. They can never be ratified or validated. They will always be considered void, despite the passage of time. For this reason, there is no time limitation to file an annulment in New York, NY based on these grounds. The invalidity subsists forever, and for as long as any of the spouses is alive, such spouse can file for annulment.

Bigamous marriages are second marriages contracted by a person who is still married (DRL § 6). For example, John is from Ohio where he was already married to Jennifer. He moved to New York and contracted a second marriage to Rachel without divorcing Jennifer. Is John’s first marriage to Jennifer valid? Assuming that all the requisites to celebrate a marriage in Ohio are present, then John’s first marriage to Jennifer is valid. How about John’s second marriage to Rachel, is it valid? No, it is clearly not valid because it is a second marriage contracted while his first valid marriage to Jennifer was still subsisting. No amount of time of John and Rachel living together can validate their marriage. Rachel can file for an annulment ten, twenty, thirty years after the celebration of marriage, and such case for annulment will still prosper because a bigamous marriage will always be a void marriage.

Assuming that John was legally separated from Jennifer when he contracted his second marriage with Rachel, is Rachel’s marriage to John valid? Still, the marriage is not valid and considered b bigamous. A legally separated spouse does not entitle such spouse to marry against because he is still technically and legally considered to married to that spouse.

Assuming that during John’s marriage to Rachel, he was able to get a divorce from Jennifer. Is John’s marriage to Rachel valid? The marriage is still not valid. John and Rachel have to be married again after the divorce decree is issued in order for the marriage to be considered valid.

Assume that there was no second marriage. Instead John was married to Jennifer, who was his long-lost biological daughter, is John’s marriage to Jennifer valid? No. John’s marriage to Jennifer is not valid because it is an incestuous marriage. As a void incestuous marriage, it can never be ratified, and no passage of time can make the marriage valid. Any of them can file a case for annulment in New York, NY at any time, and it will still prosper.

An incestuous marriage is a marriage between a legitimate or illegitimate: ancestor and descendant; brother and sister (whether by whole or half-blood); or uncle and niece or aunt and nephew (DRL § 5).

Voidable Marriages

A marriage is voidable when one of the spouses: was under 18 when the marriage was contracted; was incapable of consenting to the marriage for want of understanding; was prevented by physical incapacity from consummating the marriage; was incurably mentally ill for a period of five years or more; consented to the marriage due to force, duress, or fraud (DRL § 7). In these cases, any of the spouses may file for annulment, but there is a time period for filing the petition. If one of the spouses was underaged, the petition should be filed within a reasonable time when the person has attained 18 years of age (the age of legal consent). For spouses whose consent was obtained through force, duress, or fraud, the petition for annulment in New York, NY should be filed within the within the civil state of limitations. For spouses who did not physically consummate the marriage, it must be filed within 5 years from the marriage. When one of the spouse is mentally ill . Otherwise, the spouse may be considered to have ratified or consented to the marriage despite knowledge of the ground of annulment.

For example, Aaliyah married R. Kelly in New York when she was 15 years old. Is the marriage valid? No, because Aaliyah was underaged at the time of marriage. Since she is under the age to give legal consent (which is 18 years old), the marriage is voidable, or void from the time its nullity is declared by the court. Assuming Aaliyah turns 18, freely cohabited with R. Kelly for 10 years thereafter, and then filed a case for annulment 10 years after turning 18, will Aaliyah’s case for annulment prosper? No, because Aaliyah is presumed to have validated the voidable marriage by consent.

Suppose that Aaliyah married Elton, instead, when both were of legal age. However, one year after being married, both Aaliyah and Elton have still not consummated their marriage (had sex). Aaliyah then files a case for annulment in New York, NY, will such case prosper? Yes, because she filed it within 5 years from the marriage.

Assuming that Aaliyah continued to cohabit freely with Elton for 10 years after the marriage without the marriage having ever been physically consummated, can Aaliyah file a case for annulment in New York, NY after 10 years? No, because she did not file it within 5 years from marriage and is presumed to have consented to the marriage despite knowing of the ground of annulment.

Annulment vs. Divorce

In annulment, since one has to allege and prove specific grounds, annulment in New York, NY has to undergo trial where one has to present evidence in order to get an annulment decree. On the other hand, one can get divorced in New York, NY without going through trial on the ground of irretrievable breakdown of marriage for more than 6 months. Thus, it is cheaper to get divorced than annulled. In these cases, it does not make financial sense to file for annulment when one can get divorced easily.

One major difference, however, between an annulment and divorce is that in annulment, since the marriage is considered void from the beginning, the court generally restores the parties to their financial status before the marriage. Thus, if one has separate assets to protect prior to the marriage, then an annulment, despite its legal costs, may be a more financially viable option.

If you are considering annulment or divorce, it is important that you immediately consult with a lawyer because there are statutory periods of limitation in annulment. Should you need assistance in the evaluation of your case, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.