Annulments and Custody, Support, Equitable Distribution, Maintenance

In New York, annulments are rarer than divorces. However, though they may be less common, the procedure is still available for partners so long as the correct legal grounds are present. Underlying the concept of annulment is the legal theory that the “marriage” to be voided, after the annulment, was never a valid marriage. Legally, marriages that have been annulled are regarded as “nullified” or “void” marriages, and the action to begin this procedure must begin at a certain time to be considered applicable. The time limit that applies to your particular circumstances will depend on the circumstances as well as other crucial factors.

An annulment is distinctly different to a divorce in that the legal procedure for divorce is used to terminate a marriage that was considered to be previously legitimate and valid under the eyes of the law. An annulment, on the other hand, becomes a declaration that the marriage was never legally valid to begin with. However, as in a case of divorce, annulment cases may permit the courts to award custody and parenting or visitation rights regarding the children involved in the marriage, and may require the payment of child support or other forms of maintenance. For instance, according to Domestic Relations Law, there are formulas for both temporary maintenance (support for the spouse while a matrimonial case is pending) and durational or permanent maintenance if any (support for the ex-spouse for some time period after the case is finished), and courts have some discretion to decide whether or not to order a maintenance award within any matrimonial action – including annulments.

In the same vein as ordering maintenance in annulments, it is possible for the New York Supreme court to determine orders for child custody, child support, equitable distribution, and attorney fees – just as they would within a typical case of divorce.  Determining whether your marriage is eligible for annulment can be a difficult process, as there are a number of crucial grounds to consider. In order to have your marriage annulled or regarded as “void” according to New York law, some of the typical scenarios are as follows.

1. If someone is married by someone without authority to perform marriages, engages in an incestuous marriage or a new marriage when they are still married to a living previous spouse, the marriage would be void.
2. If the marriage took place when one of the parties was considered too young to give consent to being married, the annulment can be granted.
3. If one of the spouses is considered mentally retarded, then a relative of that individual can initiate the action for annulment on behalf of that person.
4. If one of the spouses within the marriage was unable to consummate the marriage on a physical level, then it can be annulled on these grounds.
5. If a marriage was entered into by a spouse under fraud, duress, or force, then the victim can apply for annulment.
6. If one of the parties suffers from a mental illness which cannot be cured for at least five years, this can be used as grounds for annulment.

When a marriage is annulled, the parties involved will lose the rights that they had as a legally married person. However, following an annulment, both spouses will also be free to marry another individual without having to worry about moving through the process of divorce. Similar to divorces, either spouse will no longer be entitled to share in the estate of their former partner following their death.

Also, as in a New York divorce, a final annulment judgment should generally include a determination of the rights each parties have regarding their separate property and equitable distribution of marital property. In this area, it is possible to see another way in which annulment can be considered as different from separation or divorce. In a divorce, the court or the parties by agreement, separates both parties on an economic level by dividing their assets through the process of equitable distribution. Similarly, these determinations need to be made for a couple in an annulment.

The Domestic Relation Laws gives the court the power to award maintenance or temporary maintenance to parties within any matrimonial proceeding. What’s more, the Domestic Relations Law also gives the court the right to award payment of child support or temporary child support during the process of any matrimonial proceeding. This means that although individuals undergoing an annulment, they may still be able to access financial support and maintenance in various different forms.

Typically, most people feel that the court should always award financial support to the party involved in the case that was a “victim” of the other parties’ actions or at a minimum not order the “victim” to pay the other. In other words, the person who engaged in the behavior that warranted the decision to seek out an annulment or a void marriage should not benefit financially under this theory. However, it is within the court’s discretion, under appropriate circumstances, to determine how maintenance and support should be provided according to statutes and legal precedents. With child support and maintenance, under the new maintenance law, deviations from the guideline amounts should occur under specific enumerated circumstances only. Also, in most divorce cases, the starting analysis for equitable distribution usually is an equal division of marital assets.

Whether there should be a different distribution than equal can be within the discretion of the court. Circumstances under which there can be deviations from the guidelines and the norms have been the topic of some of my previous blogs under specific subjects such as child support, maintenance and equitable distribution. Tune in soon for a blog that summarizes cases in which deviations from the guidelines and norms is appropriate. For more information on the subjects of divorce, annulments, and maintenance orders, please browse through our web pages and blog entries.  While I hope this blog was informative, it is not intended to be legal advice.  If you would like to discuss your personal case, please call for your free initial consultation. It would be our pleasure to speak with you.