Why Annulment is Not Easier than Getting Divorced in New York

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Why Annulment is Not Easier than Getting Divorced in New York

Why Annulment is Not Easier than Getting Divorced in New York by Deborah E. KaminetzkyWhen New York required fault grounds prior to 2010, people who were married only a short time and had no children might have considered annulment rather than divorce proceedings. Now that New York has divorce based on irretrievable breakdown of the marriage, annulment in New York is actually more complicated than divorce. Just like New York has specific grounds for divorce, annulment also has specific grounds. The grounds are:

1. Failure of a party to have reached the age of consent;
2. Lack of understanding, such as being mentally retarded or mentally ill;
3. Physical incapacity to consummate the marriage;
4. Consent obtained by force, duress, or fraud; and
5. Incurable mental illness for five years or more.

Unlike divorce based on irretrievable breakdown, an annulment requires evidence and corroboration of that evidence. That means that even if both parties agree and can testify that one of the grounds has been met, the court will require a third-party witness.

As an example, if two people agree and are willing to testify that one party made it clear prior to marriage that they wished to have children and the other party agreed but then refused after the marriage (fraudulent inducement), not only would both parties have to either testify or sign affidavits regarding those facts but they would need a third party to sign an affidavit or testify that they heard those conversations.

This is a much harder thing to accomplish than what is required for no-fault divorce, as all that is required for no fault is testimony that the marriage is irretrievably broken with no third-party evidence. With annulment, not only does there have to be a third-party witness, but they have to agree to get involved in a sworn statement or testifying in court. Not everyone wants to get involved in something like that.

The auxiliary documents required in an annulment are similar to those required in a no-fault divorce, so there is no savings in time, effort or cost to accomplish an annulment with the exception of a global stipulation of settlement. A stipulation of settlement which settles all matrimonial issues between the parties in a divorce is not necessarily required in an annulment; however, I have insisted on one on a few specific issues. Once the paperwork is submitted it still takes several months for the judgment of annulment to be signed. One of the issues I insist on in an annulment agreement is waiver of estate rights – this is just in case a party passes away in the interim, the other side does not benefit from their estate; they are, after all, agreeing to an action which ends their marriage. In addition, sometimes there are financial issues between the parties, even though they want to end the marriage, and those usually need to be worked out in writing.

To say that annulment would not be my first choice would be an understatement. That being said, depending on the issues in the particular case and whether an annulment versus a divorce is important for one or both parties, it can still be a useful vehicle to end a marriage.

Deborah E. Kaminetzky, P.C.

 

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2017-11-17T22:26:38+00:00 September 30th, 2016|Divorce Law, Estate Planning|0 Comments

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.