The Law Offices of David Smoren, PLLC
The Law Office of David SmorenThe Law Office of David Smoren
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Annulment

Many people contact our office inquiring about obtaining an annulment of their marriage. In response, we commonly find that numerous people have misconceptions about dissolving their marriage by annulment. These misconceptions typically involve confusion between obtaining a religious dissolution and a civil dissolution of the marriage, which are typically separate and distinct processes. Other misconceptions involve the belief that an extremely short marriage or the lack of consummation alone is the only legal requirement to obtain an annulment.

To clarify these misconceptions not only do we discuss the legal requirements for obtaining an annulment, we make sure that our clients clearly understand the legal and practical aspects and differences between a civil annulment (void and voidable marriages), a legal separation and a divorce. It is our belief that an individual confronted with the possibility of terminating their marriage should be educated on all of the available options prior to pursuing an annulment. Depending on a person’s individual situation, an annulment may not be obtainable or may not be the best choice to accomplish their goals.

It is not always easy to identify ones goals at first glance nor is it easy to determine whether your individual interests will be best served by an annulment or a legal separation where the parties remain married or a divorce which dissolves the marriage. Only after a comprehensive analysis of your individual facts and the law will you be in a position to determine whether an annulment is the right choice for you. At the Law Offices of David Smoren, PLLC we have the experience to assist our clients develop their goals and assist them in deciding what is best for their individual situation. Whether it is an annulment, a legal separation or a divorce, we will provide you with a confident legal opinion to assist you in determining what is best for your unique situation.

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your options or simply post a comment or question on the contact form.

New York – Annulment – The Basics

In New York an annulment is a legal action that seeks a judicial finding that a marriage is void, as though it had never occurred. There are two types of marriages that may be subject to an annulment, void marriages, that by their very nature are void from the start based upon public policy concerns, and voidable marriages that require a judicial determination or Court order.

Void Marriages

Void marriages are by their very nature a nullity from the beginning, and do not require a judicial determination. However, it is wise to bring an action for a judicial declaration that the marriage is in fact void for various practical reasons.

Void marriages are identified as follows:

  • Incestuous Marriages – unless spousal relationship valid in state where it took place.
  • Former Spouse Still Living – subsequent marriage is void if prior marriage not legally dissolved.
  • Unauthorized Solemnization – a marriage administered by person not authorized by statute.

Voidable Marriages

Voidable marriages are not a nullity from the beginning and  require one spouse to commence a legal action declaring the marriage void.

Voidable marriages are identified as follows:

  • Incapable of Consenting due to Mental Illness – mental illness preventing one spouse from fully understanding the nature of the marital relationship at the time of solemnization.
  • Under the age of Consent – under age 18 without parental consent,  under age 16 without parental consent and judicial approval, 14 or younger. 
  • Incapable of Sexual Relations –  must be incurable.
  • Consent to marry obtained by force, duress or fraud – must show lack of free will or that consent was given due to fraud.
  • Incurable Mental Illness – mental illness during marriage lasting more than 5 years.

The above is an overview of the types of marriages that may be the basis for an annulment proceeding or an action to declare a marriage void. One must be aware that there  are certain particularities that must established  as to each of the above grounds for an annulment. In addition, there are certain defenses that are available to a spouse who opposes an annulment action that must also be considered.

Moreover, a spouse who is considering an annulment will be charged with a much higher standard of proof as compared to the proof required to obtain a divorce.  Courts typically require corroborating evidence from witnesses other than the parties in the form of testimony and/or written affidavit. It is this requirement that often persuades a spouse to file a divorce over an annulment action.

As with an action for divorce, a court in an annulment action can decide issues such as custody, child support, maintenance, equitable distribution and payment of attorney and expert fees. 

A careful analysis of your specific facts must be done prior to deciding whether an annulment is appropriate.    At the Law Offices of David Smoren, PLLC we have the ability and experience required to assist you in making the decision as to whether such a proceeding is right for you.

Call us today at 718 225-6700 for a free phone consultation, or to arrange for a comprehensive office consultation to discuss your specific legal and concerns, or simply post a comment or question on the contact form.