Like a traditional divorce, an annulment ends your marriage. However, an annulment goes an extra step in that it declares your marriage legally invalid or void. If you are granted an annulment it is as if your marriage never existed. This concept can be appealing, especially if your religion or culture does not allow for divorce. However, obtaining an annulment in New York is often far more difficult than obtaining a divorce because the legal requirements to do so are more stringent.
As is the case with divorce, in order to annul your marriage you must have grounds to do so. Since the implementation of “no fault divorce” in 2010, a divorce can be based on the ground of “irretrievable breakdown,” the New York equivalent of irreconcilable differences. All it takes to meet this ground is the sworn statement of one party. The grounds for annulment, however, must be proven with independent evidence and if you do not have this evidence you will not be able to obtain an annulment. The grounds for annulment are found in Domestic Relations Law §140 and are as follows:
- Former husband or wife living;
- Party under the age of consent;
- Party a mentally retarded person or mentally ill person;
- Physical incapacity;
- Consent by force, duress or fraud.
The first four grounds for annulment in New York are self-explanatory and easier to prove if true. However, these grounds are rarely raised. Most people who want to annul a marriage in New York look to do so on the basis of fraud but that can be hard to prove.
The classic annulment example by fraud in New York is based on the misrepresentation of wanting to have children. For example, the parties discuss having children before they marry and agree they both want children. But then after the marriage, one party states that he or she does not want to have children. This would qualify as “consent by force, duress or fraud.” It might seem that it would be easy to prove this fraud because all you need to do is say your spouse lied. Think again. New York requires corroboration of the fraud. That corroboration usually takes the form of a sworn affidavit from a person who witnessed conversations about having children before and after the marriage. It can be difficult to find someone to act in this capacity.
If you are able to have your marriage annulled, make sure to speak to your accountant about your prior tax returns. Since the annulment voids your marriage, you may need to amend the tax returns filed while you were married.
If you would like to discuss whether you and your spouse meet the requirements for an annulment, Greenblatt Law can help. Although rare, we have experience handling annulments and can advise you accordingly.
