When 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, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516