How Do I Get an Annulment in New York?
Full Question:
Answer:
An annulment is legal decree that states that a marriage was never valid. The legal effect of an annulment is to void the marriage as though it never existed. Generally, the length of time married is not a determining factor to request an annulment. Misrepresenting that one has a substance abuse problem may be a ground for an annulment. Mere regret alone is generally insufficient grounds for an annulment. Some of the reasons for granting an annulment are:
FRAUD OR COERCION
The consent to marriage of one of the parties was obtained by coercion or fraud and the parties have not cohabitated (lived together as husband and wife) after learning of the fraud. Fraud or coercion by a party to the marriage is grounds for an annulment, but each case is determined by the specific facts involved.
Cases where annulments have been granted in the past based on fraud include the following circumstances:
CITIZENSHIP
One person married another solely to obtain a green card, or citizenship.
One person misrepresented or concealed that he/she would not fulfill a prenuptial promise to become a U.S. citizen.
SEXUAL RELATIONSHIP
One person misrepresented a willingness to consummate the marriage and reside together following the marriage.
One person misrepresented a willingness to bear children after the marriage.
One person misrepresented or concealed that he/she was not willing or physically able to engage in sexual intercourse following the marriage.
One person misrepresented to the other party that he/she was willing and able to conceive children during the marriage, despite knowing they are sterile and unable to conceive children.
The wife misrepresented or concealed that she was pregnant by another man at the time of marriage.
Prior to the marriage the wife claimed to be pregnant, but it was disclosed after the marriage that she was not pregnant.
One person misrepresented or concealed that he/she was homosexual.
CHARACTER, HONESTY
One person misrepresented or concealed that he/she had physically abused a prior person in their lives.
One person misrepresented or concealed that he/she had a criminal history.
One of the parties was forced into the marriage because of duress, threats and intimidation and would not have entered into the marriage except for the other party’s conduct.
HEALTH
One person misrepresented or concealed that he/she was not in good health or had a disease.
One person misrepresented or concealed that he/she suffered from a mental illness or had been institutionalized in a mental hospital.
One person misrepresented or concealed that he/she suffered from alcohol, drug, or gambling addiction.
FINANCIAL
One person misrepresented or concealed that he/she married the other person solely to obtain the parties' money, wealth or property.
One person misrepresented or concealed that he/she would not fulfill the terms of a prenuptial agreement to reimburse the other party for alimony lost because of remarriage.
RELIGION
One person misrepresented or concealed that he/she would not fulfill a prenuptial promise to have a religious marriage ceremony performed after the civil marriage ceremony.
One person misrepresented or concealed his/her present religious conviction or acceptance of the other's religion.
One person misrepresented or concealed his/her prior divorce and the other party is a Roman Catholic.
Other grounds may include:
Undisclosed prior marriage
Violation of divorce decree or statute prohibiting remarriage.
Marriage entered into as a joke or without an intent to having a binding marriage.
One or both parties were under the legal age to consent at the time of marriage, as defined by state statute
Incestuous marriages, as defined by incest laws of the state in which the marriage took place.
Temporary insanity existing at the time of marriage, so that the capacity to marry was not present because the person lacked an understanding of the duties and relationship of marriage. Poor judgment is insufficient.
Intoxication at the marriage ceremony to such a degree as to render that person incapable of knowing the nature of the marriage contract and its consequences.
Please see the following NY statutes:
§ 140 Dom. Rel. Action for judgment declaring nullity of void marriages
or annulling voidable marriage.
(a) Former husband or wife living. An action to declare the nullity of a
void marriage upon the ground that the former husband or wife of one of the
parties was living, the former marriage being in force, may be maintained
by either of the parties during the life-time of the other, or by the
former husband or wife.
(b) Party under age of consent. An action to annul a marriage on the
ground that one or both of the parties had not attained the age of legal
consent may be maintained by the infant, or by either parent of the infant,
or by the guardian of the infant's person; or the court may allow the
action to be maintained by any person as the next friend of the infant. But
a marriage shall not be annulled under this subdivision at the suit of a
party who was of the age of legal consent when it was contracted, or by a
party who for any time after he or she attained that age freely cohabited
with the other party as husband or wife.
(c) Party a mentally retarded person or mentally ill person. An action to
annul a marriage on the ground that one of the parties thereto was a
mentally retarded person may be maintained at any time during the life-time
of either party by any relative of a mentally retarded person, who has an
interest to avoid the marriage. An action to annul a marriage on the ground
that one of the parties thereto was a mentally ill person may be maintained
at any time during the continuance of the mental illness, or, after the
death of the mentally ill person in that condition, and during the life of
the other party to the marriage, by any relative of the mentally ill person
who has an interest to avoid the marriage. Such an action may also be
maintained by the mentally ill person at any time after restoration to a
sound mind; but in that case, the marriage should not be annulled if it
appears that the parties freely cohabited as husband and wife after the
mentally ill person was restored to a sound mind. Where one of the parties
to a marriage was a mentally ill person at the time of the marriage, an
action may also be maintained by the other party at any time during the
continuance of the mental illness, provided the plaintiff did not know of
the mental illness at the time of the marriage. Where no relative of the
mentally retarded person or mentally ill person brings an action to annul
the marriage and the mentally ill person is not restored to sound mind, the
court may allow an action for that purpose to be maintained at any time
during the life-time of both the parties to the marriage, by any person as
the next friend of the mentally retarded person or mentally ill person.
(d) Physical incapacity. An action to annul a marriage on the ground that
one of the parties was physically incapable of entering into the marriage
state may be maintained by the injured party against the party whose
incapacity is alleged; or such an action may be maintained by the party who
was incapable against the other party, provided the incapable party was
unaware of the incapacity at the time of marriage, or if aware of such
incapacity, did not know it was incurable. Such an action can be maintained
only where an incapacity continues and is incurable, and must be commenced
before five years have expired since the marriage.
(e) Consent by force, duress or fraud. An action to annul a marriage on
the ground that the consent of one of the parties thereto was obtained by
force or duress may be maintained at any time by the party whose consent
was so obtained. An action to annul a marriage on the ground that the
consent of one of the parties thereto was obtained by fraud may be
maintained by the party whose consent was so obtained within the
limitations of time for enforcing a civil remedy of the civil practice law
and rules. Any such action may also be maintained during the life-time of
the other party by the parent, or the guardian of the person of the party
whose consent was so obtained, or by any relative of that party who has an
interest to avoid the marriage, provided that in an action to annul a
marriage on the ground of fraud the limitation prescribed in the civil
practice law and rules has not run. But a marriage shall not be annulled on
the ground of force or duress if it appears that, at any time before the
commencement of the action, the parties thereto voluntarily cohabited as
husband and wife; or on the ground of fraud, if it appears that, at any
time before the commencement thereof, the parties voluntarily cohabited as
husband and wife, with a full knowledge of the facts constituting the
fraud.
(f) Incurable mental illness for five years. An action to annul a
marriage upon the ground that one of the parties has been incurably
mentally ill for a period of five years or more may be maintained by or on
behalf of either of the parties to such marriage.
§ 141 Dom. Rel. Action to annul marriage on ground of incurable mental
illness for five years; procedure; support.
1. If the marriage be annulled on the ground of the mental illness of a
spouse, the court may include in the judgment an order providing for his or
her suitable support, care and maintenance during life from the property or
income of the other spouse. The court shall specify the amount of such
support, care and maintenance and, before rendering judgment, may exact
security for such support, care and maintenance during life and shall order
the filing and recording of the instrument creating such security in the
office of the clerk of the county in which the action is brought and the
filing of two certified copies thereof with the office of mental health at
its Albany office. The provisions of the judgment relating to support, care
and maintenance of the mentally ill spouse during his or her life and to
security therefor may be modified or amended at any time by the court upon
due notice to the other party and other interested parties as the court may
direct and in proper case the value of the suitable support, care and
maintenance to such spouse during the balance of his or her life based upon
appropriate mortality tables may be adjudged and determined by the court in
which the estate of a deceased spouse is being administered and the same
may be recovered on behalf of the mentally ill spouse from the estate of
the deceased spouse. If the mentally ill spouse is maintained in an
institution or otherwise under the jurisdiction of the office of mental
health, the suitable support, care and maintenance as required in the
judgment, unless otherwise directed by the court, shall be the charge
established by the commissioner of mental health and such charge may be
recovered in the manner provided by law. Such amount shall continue to be
so required for the support of the mentally ill spouse in the event of his
or her removal from the custody of the office of mental health unless
thereafter otherwise directed by the court. Any security exacted for the
suitable support, care and maintenance during life of the mentally ill
spouse shall be available to that spouse or any person on his or her behalf
or to any person or agency providing support, care and maintenance for such
spouse in the event that the required payments for such support, care and
maintenance have not been made and upon application to the court the other
spouse shall be ordered and directed to provide additional or further
security.
2. Judgment annulling a marriage on such ground shall not be rendered
until, in addition to any other proofs in the case, a thorough examination
of the alleged mentally ill party shall have been made by three physicians
who are recognized authorities on mental disease, to be appointed by the
court, all of whom shall have agreed that such party is incurably mentally
ill and shall have so reported to the court. In such action, the testimony
of a physician attached to a state hospital in the department of mental
hygiene as to information which he acquired in attending a patient in a
professional capacity at such hospital, shall be taken before a referee
appointed by a judge of the court in which such action is pending if the
court in its discretion shall determine that the distance such physician
must travel to attend the trial would be a great inconvenience to him or
the hospital, or that other sufficient reason exists for the appointment of
a referee for such purpose; provided, however, that any judge of such court
at any time in his discretion, notwithstanding such deposition, may order
that a subpoena issue for the attendance and examination of such physician
upon the trial of the action. In such case a copy of the order shall be
served together with the subpoena.
3. Except as provided in paragraph five, when the person alleged to be
incurably mentally ill is confined in a state hospital for the mentally ill
of this state, one, and one only, of the physicians so appointed shall be a
member of the resident medical staff of such hospital designated by the
director thereof. If the alleged incurably mentally ill person is not
confined in a state hospital for the mentally ill of this state, one of the
examining physicians named in pursuance of this section shall be the
director of a state hospital for the mentally ill if the alleged mentally
ill person is within this state, or the superintendent or comparable
officer of a state hospital for the mentally ill of the state or country
where the alleged mentally ill person is present if the alleged mentally
ill person is outside of this state. The report of such superintendent or
comparable officer of a state hospital for the mentally ill of such other
state or country shall not be received in evidence or considered by the
court unless he shall be a well educated physician with at least five years
of training and experience in the care and treatment of persons suffering
from mental disorders.
4. When the plaintiff has been permitted to bring such action or
prosecute the same as a poor person and the alleged incurably mentally ill
defendant is present within this state, the court shall appoint three
physicians who are examining physicians, as defined by section 1.05 of the
mental hygiene law, in the employment of the department of mental hygiene.
If the alleged mentally ill person be outside of this state, the court may,
upon proof thereof, appoint three examining physicians who are qualified
under the laws or regulations of the foreign state or country where the
alleged mentally ill person is present and who have qualifications
comparable to those specified in section 1.05 of the mental hygiene law of
the state, provided, however, that one of such examining physicians shall
be the superintendent or comparable officer of a state hospital for the
mentally ill of such foreign state or country with qualifications as
specified in paragraph four. Such examiners shall make the examination of
the alleged mentally ill party present in this state and file with the
court a verified report of their findings and conclusions without costs to
such plaintiff when the plaintiff is a poor person. Examination of an
alleged mentally ill party present outside of this state shall be made at
the expense of the plaintiff. Such report shall be received in evidence
upon the trial of the action without the personal appearance or testimony
of such examiners. If the court shall deem it necessary that the testimony
of any such examiners be taken, the court may order the taking of such
testimony by deposition only. The examiners so appointed by the court may
be members of the resident medical staff of any state hospital, whether or
not the alleged mentally ill person is being confined there.
§ 142 Dom. Rel. Dismissal of complaint in action by next friend to
annul a marriage.
Where the next friend of an infant, mentally retarded person or mentally
ill person maintains an action annulling a marriage, the court may dismiss
the complaint if justice so requires, although, in a like case, the party
to the marriage, if plaintiff, would be entitled to judgment.
§ 143 Dom. Rel. Jury trial.
In an action to annul a marriage, except where it is founded upon an
allegation of the physical incapacity of one of the parties thereto, there
is a right to trial by a jury of all the issues of fact.
§ 144 Dom. Rel. Proof required.
1. In an action to annul a marriage, a final judgment annulling the
marriage shall not be rendered by default for want of an appearance or
pleading, or by consent, or upon a trial of an issue, without proof of the
facts upon which the allegation of nullity is founded. Plaintiff shall
prove that there has been no such cohabitation between the parties as
would bar a judgment except that in an action under subdivision (c) of
section one hundred forty the plaintiff may prove instead that the mental
illness still continues.
2. In any action, whether or not contested, brought to annul a marriage,
the declaration or confession of either party to the marriage is not alone
sufficient as proof, but other satisfactory evidence of the facts must be
produced.