Many people, if not most, have basic misconceptions regarding annulments. Almost daily I receive telephone inquiries that present the following scenario: "I want an annulment because I got married last month and it was a big mistake." I explain to the caller that annulments do not work that way. Whether you have been married for one day or fifty years, the rules to end the marriage are the same.

The first consideration is whether an annulment or divorce is appropriate under the circumstances. For the most part, it is a distinction without a difference. The distinction is that in a divorce the marriage is "dissolved," while in an annulment the marriage is "voided." In both instances, however, the marriage occurred and the marriage ended. The marriage certificate still remains on record, regardless of whether the marriage was annulled or ended in divorce.

It is also important to remember that the innocent party must be the one to start the legal action and that annulment actions are subject to strict time limitations depending on the specific grounds for the annulment. An understanding of the specific grounds required for annulments begin with a discussion of what is meant by the terms void and voidable.

Under New York law, some marriages are void from their inception. That is, they are not recognized as valid from the start and can never become valid regardless of how long the participants have been married. These are called void marriages. A prime example is a marriage based on incest. The law defines such a marriage as a marriage between two parties who are related within prohibited degrees of consanguinity. Simply put, you cannot be married to your brother or sister. Likewise, you cannot marry your uncle or your niece or your aunt or your nephew. Even, mind you, if you went and got a marriage certificate and had someone perform a ceremony.

Another common example of a void marriage is one based on bigamy. A marriage is absolutely void if one of the participants has a living husband or wife unless that earlier marriage has been annulled or dissolved. No one can be married to two persons at the same time. In either case of a void marriage, it is necessary to go through a legal procedure to set the record straight. To terminate such marriages officially requires a court proceeding, known as an "Action to Declare the Nullity of a Void Marriage."

The second type of annulment is based on voidable marriages. In New York a marriage that was otherwise legal at inception, can be annulled if any of the following are met:

a) If either spouse was incurably unable to have sexual intercourse at the time of marriage;
b) If after marriage, either partner becomes incurably insane for five years or more. The court may include in such an annulment judgment a provision that includes suitable support, care and maintenance of the disabled spouse for life of that spouse, payable from the property or income of the non-disabled spouse;
c) A marriage between persons younger than 18 may be annulled, at the discretion of the Court, if the spouse who is under 18 wants an annulment. The annulment will not be granted if the minor cohabited freely with the other party after reaching the age of 18;
d) If a party is unable to understand the nature, effect and consequences of the contract of marriage because of mental incapacity (mental illness or mental retardation);
e) If either spouse consents to marry as a result of force or duress by the other or; Where consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other party's consent. The fraud must be such as to go to the essence of the marriage contract. Concealment may constitute fraud.

A legal action is also required for annulment of a voidable marriage. The action, in order to be successful, involves a higher degree of proof than a simple divorce. Often, corroborative evidence from other witnesses is also required to establish the proper grounds. As with any court proceeding, the requirements can be difficult for a non-lawyer to navigate. And as in most things, an experienced, skilled, and trusted attorney should be consulted.