Can I Get an Annulment?

One of the most common questions people ask about divorce is whether they qualify for an annulment. The most important fact to understand is that there are two types of annulments: a legal annulment and a religious annulment.

Legal vs. Religious Annulments

A legal annulment is a determination under state law that the marriage was not valid at the time it was entered into. The court determines that the marriage never actually legally happened. You cannot get a legal divorce and a legal annulment. You must choose one legal proceeding.

A religious annulment is something separate that is handled by your religious institution and is a determination that your marriage did not happen in the eyes of your religion. Note that you can get a legal divorce and get a religious annulment. You can also get a religious annulment after getting a legal annulment. The two processes have nothing to do with each other.

Reasons for Annulment in New York

New York state has six legal reasons for annulment:

1. Age. Either or both spouses were too young to consent to the marriage. In New York, you must be 18 at the time you marry to legally consent. Alternatively, if you are under 18 but older than 16, you can marry with the consent of both of your parents. A person who is younger than age 16 must have the marriage approved by a judge. If the proper consent was not given, the marriage is not legal.
2. Non-consummation. If one of the spouses is not physically able to consummate the marriage through sexual intercourse and did not know this at the time of the marriage, then the marriage could be annulled if the proceeding is brought in the first five years of the marriage.
3. Mental incapacity. If one or both spouses were mentally ill or mentally incapacitated when they got married, the marriage can be annulled as long as both spouses are alive at the time of the annulment proceeding.
4. Mental illness. If one of the spouses has suffered from a mental illness for five or more years during the marriage and the illness is incurable, an annulment can be obtained.
5. Force or fraud. If you got married because of fraud, force, or duress, an annulment is possible. Examples include lying about a pregnancy to get someone to agree to marriage or forcing someone to marry with threats of violence.
6. Previous marriage. One of the spouses was already legally married to someone else at the time the marriage took place, even if they did not realize this to be true.

Effect of an Annulment

There are several important outcomes of an annulment.

1. Voiding the marriage. The annulment determines that the marriage was not legal when it was created, and it is essentially legally undone. People who have been granted an annulment are legally considered to never have been married and will never need to check the box for “divorced” on any form in the future.
2. Legitimate children. Although the marriage itself is considered to never have legally happened, any children that were born or adopted during the marriage are legally legitimate children and are legal children of both spouses. The court will determine custody and visitation as well as child support for minor children as part of the annulment proceeding.

3. Division of assets and debts. The court will determine what is marital property and what is separate property. Marital property will be distributed between the spouses just as it would be in a divorce. In New York, this is done using the equitable distribution approach, which means that assets and debts are distributed fairly, but not necessarily equal.

   Note, however, that the reason for the annulment can impact on how assets are divided. If, for example, the marriage was created by fraud, any property transfers that created marital assets will be looked at carefully and possibly voided to protect the spouse who has been defrauded.

4. No alimony. Because there was no legal marriage, there is usually no option for spousal support (also called spousal maintenance or alimony) as part of an annulment.
5. Social Security and retirement. If you get an annulment, it nullifies your ability to collect Social Security or retirement benefits through your former spouse if you would have otherwise qualified. The Social Security Administration adopts whatever marital status your state assigns you. If you get an annulment, your marriage is null and void and would not be eligible for Social Security.

Pros and Cons of Annulment

If you are trying to decide if you want an annulment or a divorce, there are several factors to consider:

Pros

1. An annulment does not require that you meet the state residency requirements needed to file for divorce. These require that you have lived in the state for a certain period of time before you can file for a divorce.
2. If you are the victim of fraud, an annulment can make you whole again by returning assets to you that would otherwise be considered marital assets and divided in a divorce.
3. If you have been defrauded, it is easier to get your spouse to pay for your attorney fees than it would be in a divorce.
4. You are not “divorced” after the annulment. You are simply single.
5. If you get an annulment, your prenuptial or postnuptial agreement does not apply.

Cons

1. It can be more difficult to prove the reason for an annulment than the grounds for divorce, particularly because no-fault divorce is an option.
2. There is no option to receive spousal support in most annulment situations.
3. An annulment removes a spouse’s right to receive alimony or Social Security or retirement benefits through the former spouse.

The decision to seek an annulment is one that should be made after careful consideration and consultation with your divorce and family law attorney.