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.


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