Dissolving the Marriage: Divorce v. Annulment

Often times I receive a telephone call from a prospective client who states, “I don’t want a divorce. I want an annulment.” When I inquire as to why, I am typically greeted with silence because the distinction is not really understood. 

    

        An annulment invalidates a marriage that the parties were not legally capable of entering. In New York there are several scenarios where a marriage can be annulled. Specifically, a marriage can be annulled:

  • If either spouse is incurably incapable of having sexual intercourse; 
  • If in a marriage between persons under the age of 18 years, the spouse under 18 wants an annulment;
  •  If, after marriage, either partner becomes incurably insane for five years or more; (The sane spouse may be required to support the insane spouse for life.)
  • If either spouse consents to marry as a result of the force or duress of the other spouse; or if either spouse cannot understand the nature, effect and consequences of marriage; or
  • If a spouse’s consent to enter the marriage was obtained by fraud. The fraud must have been such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. 

          A common fraud ground involves a misrepresentation concerning the desire to have children. Prior to the marriage, one party, for example the husband, represents to his future wife that he wants to have children, knowing that it is important to the wife to have children. Then, after the marriage, the husband despite having represented to his prospective wife his desire to procreate refuses to have children.   Since the wife would not have entered the marriage but for the husband’s misrepresentation, the marriage was procured by fraud. Therefore, the marriage can be annulled.

          A party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.

                   

22 Responses

  1. I dig your blog. I also have a lawyer information blog, I think we should talk about a linkswap. Mine is here and i get a good number of visitors. Thanks and keep up the good posting.

  2. fidelity

    You all ought to look at truemarriage.net for more explanations.

  3. MAJ

    DOES FRAUD INCLUDE BEING MARRIED AND NEVER DIVORCED TO ANOTHER WHEN SPOUSE SIGNED MARRIAGE FORM STATING NEVER HAVING EITHER BEEN MARRIED OR DIVORCED?
    WHAT PROOF IS NECESSARY? THE FIRST WIFE’S NAME AND WHEREABOUTS ARE KNOWN.

  4. NJ

    I was hoping to find information on how to actually file for an annulment, but it looks like this site is only here to gain clients who were not informed to start.

  5. d

    Can neglect be considered as a reason for a annulment? I have been married for 2 months and I dont live w/ my husband and he is always makin up excuses to see me.

  6. Stephanie

    My husband and I married on August 30th 2007. IT was the happiest day of my life. The night however becames the worst. He threatened to kill himself and me, thre our wedding back at me etcetc. We were not ablet o consumate the marriage until 2 days later when he had apologized and said he was so anxious and out of control and promised to get help. He has been on medication now for a few weeks but the verbal abuse and now threats(both physical and emotional) have become worse. I feel trapped being that he is living in the home that I bought before we were married so that i have no place to go. Is an annulment right in this situation or do I have to wait 5 years to make it a real annulment based on what I read?

  7. You may able to dissolve the marriage and even obtain an order of protection, barring your husband from the home.
    I suggest you consult with counsel.

  8. Jane

    Hello.
    My husband and I were married sooner than we were supposed to be married so that he could get his papers. We had planned to be married summer of 2008 instead we were married July 2007. Since our marriage he has become extremely violent and threatens several times to kill me and go back to his country. We were going to work through this but every time we make an attempt for dinner or something normal nothing has changed. I have a dog that has also been killed under his watch but have no proof that he did it. I have had the police involved and have had him removed from our home. I am a very normal person with a great job, good values, and morals I also come from a very strong normal family so for me to have gotten so close to him and trusting of him the way I have could have just been him hiding who he is just to get what he needed. I am now staying out of my apartment to stay away from him b/c he knows I am looking for a divorce and he is angry b/c he will not receive his papers nor have me is there room for annulment or do I need to apply for a divorce? PLEASE HELP! Thank You.

  9. TV

    Hi,
    I’ve been married to my husband for only a month. Over the weekend I discovered that he goes online to Craigslist personals when i am asleep or not home and finds women to communicate with. Also, he has IM accounts where he has had online relationships starting back when we were first dating continuing till now, and he masturbates with these women on computer phone. I feel completely betrayed and would have never married him if i knew the truth. He says he “has a sickness and has had it for a while”. Since this “sickness” was never disclosed to me, could it be considered Fraud, and could i get an annulment?

  10. TV

    Hi,
    I’ve been married to my husband for only a month. Over the weekend I discovered that he goes online to Craigslist personals when i am asleep or not home and finds women to communicate with. Also, he has IM accounts where he has had online relationships starting back when we were first dating continuing till now, and he masturbates with these women on computer phone. I feel completely betrayed and would have never married him if i knew the truth. He says he “has a sickness and has had it for a while”. Since this “sickness” was never disclosed to me, could it be considered Fraud, and could i get an annulment?

  11. T

    Hi,
    I’ve been married 3 years my husband and I have never consummated our marriage he has threatened me and my family and told me I was only being used. He wasn’t a citizen when we married and he wanted papers which he never obtained. He recently moved back to Brazil and never signed for a Divorce can I annul it or do I have to Divorce him. I don’t know his address and what else he lied about, Help Please.

  12. hi

    hi i got married after knowing the girl for 3 months she stated the day after we were married that she was not ready to get married and we never slept or lived together what are my options

  13. Michele

    Hi I got married to my husband after eight years of never living together. He promised me that when we got married we would live together, that has never happened. We got married in New York, but we live in Florida, is that grounds for an annulment, and does it have to be done where you got married.
    I look forward to hearing from you.

  14. DC

    I ordered a set of legal forms online. I am attempting to fill them out now.
    My husband is an illegal immigrant who I dated for three years. He told me that if we got married, it would guarantee his citizenship and prevent him from possibly being deported due to a legal matter he was involved in. He provided the income while I was a full time studen. I later found out that he knew he could have been put under the threat of deportation even if we were married. Is that duress? One month after I got married I decided I wanted to be rid of him. He got my truck repossed and has refused to stick to the orignial payment agreement entered before the marriage. Is that fraud?

  15. robert

    my freind got marroed in new york on jan 10 2009, she still in love with me and does not love her new husband, he was a boyfreind from 10 years ago, and now shes wondering if she can get an annulment or does she need to get a divorce? we want to get married but she does not know where to turn, maybe u can help thanks alot rob in texas

  16. Jasmine

    I got married in 2005, and 4 days later, he disappeared. Last year, I found an aunt of his, and she said i could send divorce papers to her house because he goes from time to time, and when she told him they were there, he refused to pick them up. I found out that he went to GA and married someone else, but never filled out my divorce papers. Now, the girl he married can get an annulment and I am stuck, AND he is trying to marry someone else. What can I do. I would like to remarry, and it is kind of important for me to do so, because my family is in an emergency situation and I need my fiance’ around, but some of the things that we need to take care of are a lot easier if we’re married. I have NO way to contact my legal husband, and I can’t afford to pay for a divorce. i went to legal aid, and they said besides the papers we sent him twice, there is nothing I can do!

  17. I wasn’t completely aware of the difference between the two. Thanks for sharing this information with us. This was a good read.

  18. delores

    I have been married for almost 2 months to someone I have been with for 17yrs and after the first month they just became cruel and cold hearted. I want out asap so I am hoping for an annulment. I just need to know how I can go by doing this and if it is pricey to get one. Thanks

  19. Cruel and inhuman treatment is a cause of action for divorce, not an annulment. After six months of marriage, you can seek a no fault divorce. You can obtain an annulment, if, for instance, your spouse fraudulently induced into the marriage

  20. Pete McDowell

    I’m doing genealogy research and one of the tales of our family is that Grandma eloped to Atlantic City. Her parents sent Pinkerton detectives to bring her back to Brooklyn and then had the marriage annulled. She might have been 17 (this all happened in 1917-1918) which appears to be grounds for an annulment. Would there be any record of the annulment?
    Thanks for any help.

  21. You would have to examine the court dockets to find the case and to gain access to the court file, it is still exists.

  22. Katherine

    I been married for only 5 months and just realize I don’t love this guy It was just that he’s been my best friend for so long and I thought he was the right one since I was depress and didn’t have no one and it seem like the right choice but now having to have sex with somebody I don’t love feels weird and we haven’t have sex for almost 3 months and I want to get an annulment instead of a divorce since is better to have that in a record than a divorce we live in new York and we haven’t live together we both live on our parents house I want to get an annulment based on fraud but how can I prove my grounds?

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