Annul a Marriage in New York

In most cases, when a marriage ends, it ends after the divorce process is completed. However, in some cases, the marriage contract should never have been entered into in the first place. When the marriage license itself was granted erroneously, it is either void or voidable, allowing the parties to seek an annulment or a declaration of nullity. A "declaration of nullity" is a term applied to a void marriage, while "annulment" applies to a voidable marriage. Either way, the annulment or declaration of nullity legally nullifies the marriage contract. Since the elements for a valid contract did not exist when the marriage contract was entered into, the law operates as if the marriage contract never existed in the first place. In contrast, a divorce ends a marriage contract which was valid when it was signed. Residents of New York can only seek an annulment under certain circumstances.

Steps

Declaring a Void Marriage Null

  1. Determine if your marriage is void. In the state of New York, a marriage is only void for three possible reasons. [1]
    • The first type of void marriage is an incestuous marriage. An incestuous marriage is defined as a marriage between an ancestor and a descendant (parent-child or grandparent-grandchild), a marriage between a a brother and a sister, or a marriage between an uncle or aunt and their niece or nephew.
    • The second type of void marriage is a bigamous marriage. A bigamous marriage occurs when one or both spouses get married while still married to another living person. Under no circumstances does New York law recognize bigamous marriages.
    • The third type of void marriage is a marriage performed by a person who lacked the legal authority to perform marriages. In New York, the power to perform (solemnize) a marriage ceremony is limited to ministers, clergy, judges, and certain city and county officials. While the authority of ministers, clergy, and judges to perform marriages is statewide, the particular county or city official with the authority varies from jurisdiction to jurisdiction. [2]
  2. Decide whether you want or need a formal declaration of nullity. When a marriage is void, the marriage license was granted to parties who could not have legally entered into a marriage contract. Therefore, legally speaking, there never was an actual marriage, only the illusion of a marriage. Since there was no marriage to begin with, technically, there is no need for an official declaration of nullity. However, you still might want to seek a formal declaration of nullity if:
    • You have children as a result of the void marriage. A formal declaration of nullity helps ensure that a child who is the result of a void marriage receives all the rights and privileges he or she is entitled to, including rights to inheritances and child support.
    • You think you might be entitled to alimony. For example, if your spouse was a bigamist, that would render your marriage void. However, you may have been married to the bigamist for some time, and therefore be entitled to receive alimony. Alimony would be impossible to obtain without a formal declaration of nullity by the court.
    • You need to formally separate jointly held property. Regardless of whether or not your marriage was legally void, you may have acquired property during the period you and your spouse were together. If this is the case, obtaining a declaration of nullity can give you the legal foundation you need to separate common property on an equitable basis. [3]
  3. Gather evidence. While the evidence necessary to demonstrate a marriage was void is not extensive, you will still need to provide evidence to the court. If your marriage is void on grounds of bigamy, provide documentation for both of your spouse's marriage licenses.Baptismal or birth records should be sufficient evidence to demonstrate an incestuous marriage. If the person who performed your marriage ceremony was unlicensed, then records from religious entities demonstrating a lack of affiliation between the minister and the denomination would be of great value.
  4. Take the next step. No matter what, obtaining your declaration of nullity will require the involvement of a New York state court. Most likely, you and your spouse will need to appear before a judge. The details depend on the specifics of your case.
    • If the separation between you and your spouse will involve contested questions of property, child custody, and child support, you should strongly consider hiring an attorney to represent you in court. If you do, then you only need to submit the evidence you gathered to your attorney and show up in court when the date is set.
    • If you do not use an attorney, then you need to go to your local county clerk of court's office. There, you will find the necessary forms to initiate your case. Fill out the forms and pay the filing fees. You will receive a court date. Show up to court on time and with all of the documentation necessary to prove to the judge that your marriage was void on the grounds that you claim.

Method 2: Annulling a Voidable Marriage

  1. Determine the grounds upon which your marriage is voidable. Unlike a void marriage, a voidable marriage requires court intervention to dissolve. In New York, there are only five circumstances rendering a marriage voidable. [4]
  2. Consider whether one or both spouses was below the age of consent. The age of consent in New York with respect to marriage is 18. If one spouse or both spouses was below the age of 18 at the time of the marriage, and were married without parental consent, then that can render a marriage voidable. [5]
  3. Consider each spouse's mental capacity. If there is some reason that at least one spouse lacked the capacity to understand the "nature, effect, and consequences of the marriage," then the marriage is voidable. Of course, there are a variety of reasons a person might permanently or temporarily lack capacity, but one of the most common situations that fits into this category is a marriage where one or both spouses are mentally handicapped. [3]
  4. Determine whether the marriage was consummated. If at least one spouse is permanently physically unable to have sexual intercourse, but the other was unaware when the marriage began, that constitutes grounds for an annulment under New York law. [1] [6]
  5. Determine whether or not a spouse has an incurable mental illness. If one or both spouses suffers from an incurable mental illness for five or more years, the marriage is rendered voidable. The action can be brought by either spouse or on behalf of either spouse. If you are inclined to use this as grounds for an annulment, proceed with caution, because the court can award the sane spouse to financially support the mentally ill spouse.
  6. Consider how consent was obtained. If consent was obtained through force, illegitimate pressure, or fraud, that will make the consent voidable. Examples of fraudulent marriages would include misrepresenting a pregnancy, misrepresenting a willingness to have children, or marrying to obtain legal immigration status. [5] [7]
  7. Make sure you haven't waived your right to an annulment. In contrast to a void marriage, which is always invalid, in voidable marriages, spouses can waive by consent what would normally be grounds for an annulment. The different grounds for an annulment have different waivers.
    • If you seek an annulment because one of the spouses was too young to give consent, understand that if both spouses continue to live together after they turn 18, that constitutes a waiver. [5]
    • If you plan to seek an annulment because of an inability to consummate the marriage, be aware that you need to initiate your case within the first five years of marriage. You will also need to show that you were unaware of this inability when the marriage started. [6]
    • If you plan to seek an annulment on the basis of fraud, force, or duress, then you must bring the action within two years of your discovery of the fraud and within three years of the commission of the fraud. Furthermore, if you continue to live with your spouse after you discover the fraud, that will constitute a waiver. [7]
  8. File a petition to annul the marriage. If the marriage was obtained by fraud, force, or duress, only the innocent party to the marriage can file for an annulment. If the issue was an inability to consent due to age, then only the underage party or their relatives can bring the action for annulment. If the issue is a lack of mental capacity, then either spouse can seek the annulment, in addition to the relative of the spouse who lacked capacity. If the issue was an inability to consummate, then either party may seek the annulment, although the incapable spouse will have to meet certain requirements in order to seek the annulment. [1]
    • New York does not provide forms for procuring an annulment, and even the simplest annulment requires a trial where evidence is presented to prove the grounds for annulment. The type of proof necessary is dependent upon the grounds for obtaining the annulment, and in some cases, is extensive. For this reason, it is strongly recommended that you use the services of an attorney if you wish to pursue an annulment. [8]
  9. Find a disinterested party to serve your spouse with a copy of your petition for an annulment. If you choose to initiate an action for annulment without the services of an attorney, you will first need to find a process server to serve your souse with a copy of the petition. The court requires that a third party to the action serve the documents. You can not serve them yourself.
  10. Return the completed proof of service to the court after your spouse has been served. A proof of service is a document that notifies the court that your spouse has been given a copy of the annulment documents by a third person. The proof of service must be completed by the person who gives your spouse the annulment petition. The completed proof of service must be returned to the court within 120 days after you file your annulment. Some forms that you may use for service of process are here: [1]
  11. Wait for your spouse to file an answer to your annulment petition. Your spouse has 20 days after the day he is served to file an answer with the court. After your spouse files his response, you will be served with a copy in the same way that you had your spouse served with your documents.
  12. Gather the proof that your marriage should be annulled while you are waiting for the court hearing. The hearing will usually be 4 weeks or more after you file your petition for the annulment. [9]
    • Research any area of annulment law specific to your marriage. Take the time to research and gather the documents related to your situation prior to the court hearing. This will make you more prepared for your court hearing.
    • Think about who you will call as witnesses. The court may require more than just your testimony and that of your spouse, depending on the circumstances of your annulment.
  13. Attend the court hearing and follow all instructions the judge gives you. The court hearing may not be the only hearing necessary in your matter. If your annulment is simple, there are no children involved, and you and your spouse present all the necessary evidence to prove your annulment, then there may be no need for another hearing. However, the judge may need you or your spouse to supply him with additional information regarding the annulment. If so, he will tell you what he needs and give you another court date. [9]
    • Complete any financial documents that are required for the annulment to be finalized. The court may require that you complete financial documents, especially if you and your spouse have children together.
    • Follow all the additional instructions of the judge and bring all requested documentation to each court hearing. The more you cooperate with the judge, the faster your annulment will be approved.

Sources and Citations

  1. ↑ Jump up to: 1.0 1.1 1.2 http://www.jdbar.com/Articles/grounds-annulment.html
  2. Jump up ↑ http://www.jdbar.com/Statutes/drl-11.html
  3. ↑ Jump up to: 3.0 3.1 http://www.divorcenet.com/states/new_york/nyfaq11
  4. Jump up ↑ http://www.divorcenet.com/resources/annulment/annulment-basics/new_york
  5. ↑ Jump up to: 5.0 5.1 5.2 http://www.nycbar.org/get-legal-help/article/family-law/ending-your-marriage/annulment/
  6. ↑ Jump up to: 6.0 6.1 http://www.jdbar.com/Statutes/drl-7.html#7-3
  7. ↑ Jump up to: 7.0 7.1 http://www.kohtzlaw.com/marriage-annulment-in-new-york.html
  8. Jump up ↑ https://www.nycourts.gov/divorce/info_faqs.shtml
  9. ↑ Jump up to: 9.0 9.1 http://www.alatsasandtaubpc.com/blog/2015/05/how-to-annul-a-marriage-in-nyc-with-a-brooklyn-annulment-lawyer/
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