There are two different types of marriage annulments, a civil annulment and a religious annulment. Courts issue civil annulments. A civil annulment may not be required to obtain a religious annulment. If you were married in a religious ceremony, you should consult with your clergymen concerning the requirements of obtaining a religious annulment.
Many people misunderstand civil annulments. In New York, there is no practical difference between an annulment and a divorce. Both end a marriage. Many people mistakenly think that, when a marriage is annulled, the marriage records are destroyed. Just as in a divorce, the marriage records remain on file. Another misconception is that an annulment can be obtained solely based upon being married for a short amount of time. This is not true. Once parties marry, they are married. The law does not provide for a trial marriage. Many people think that an annulment is simpler than a divorce. This also is not true. An annulment is actually a bit more complicated than a divorce and, as a result, generally costs more to obtain.
The legal action to declare a marriage annulled is brought in the Supreme Court of New York. In New York, the Supreme Court is not the highest court or even an appellate court. It is the court of general jurisdiction.
There are two different types of marriages that can be annulled, void marriages and voidable marriages. A void marriage is void at its inception and, as a result, can never be made legal. Examples of void marriages include a marriage between an ancestor and a descendant, such as between a parent and a child; a marriage between an uncle and his niece or an aunt and her nephew. Other examples of void marriages include: a marriage between siblings; a marriage with a person who is already married, whose marriage was not terminated or dissolved, and whose spouse is still alive; and a marriage performed by someone who did not have the legal authority to perform the marriage. In New York cousins may legally marry.
Although a void marriage is not recognized as valid, such a marriage cannot be legally terminated without obtaining a declaration of a nullity of the marriage. In addition to the declaration, the court can also legitimize children of the marriage and address all issues of the marriage, such as custody of the children, child support, maintenance and equitable distribution of marital assets. There is no time limit on bringing an annulment for a void marriage. The action may be brought anytime during the life of the parties.
Voidable marriages are marriages that, although legal at inception, can be annulled if any of the following conditions are met:
- Either spouse was incurably unable to have sexual intercourse at the time of the marriage. The action must be brought within 5 years and the party bringing the action must have had no prior knowledge.
- After marriage, either partner becomes incurably insane for five years or more. The annulment must be brought within 6 years. The court may include in such an annulment judgment a provision that provides suitable support, care and maintenance of the disabled spouse for life payable from the property or income of the non-disabled spouse;
- A marriage involving a person 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. The annulment must be brought within in 6 years;
- Either spouse was unable to understand the nature, effect and consequences of the contract of marriage because of mental incapacity (mental illness or mental retardation). The annulment must be brought within 6 years;
- Either spouse consented to marry as a result of force or duress by the other. The annulment must be brought within 6 years; or
- Consent to marry was obtained by fraud that would have deceived an ordinarily prudent person and was material to obtaining the other spouse’s consent. The fraud must go to the essence of the marriage contract. Concealment of a material fact may constitute fraud. The annulment must be brought within 3 years of learning of the fraud.
A legal action is also required to annul a voidable marriage. Only the spouse not at fault may commence the action to annul. An annulment requires a higher degree of proof than a divorce. Often, corroborative evidence from other witnesses is required to establish the proper grounds. Strict time limits apply to commencing the annulment action. Each of the above reasons for an annulment may also contain further restrictions.
The vast majority of annulments are based upon fraud. Fraudulent acts that warrant an annulment include marriage for a green card; falsely claiming the desire to have children; falsely claiming to love the other spouse; and falsely claiming to be pregnant. Proving an annulment case will require an affidavit from a witness, who heard the spouse make a statement prior to marriage that was false, and then, after the marriage, heard the spouse admit that the false statement made prior to the marriage was made to induce the innocent spouse to marry.
Our legal fee for a simple annulment with the consent of both spouses is $1,200. The court fees total $343. Accordingly, the total fee is $1,543. Call us at (718) 625-0800 to schedule a free consultation.