Are you considering a Divorce or an Annulment? How do you know which one is right for you?
Many people call my office asking about annulment. I blame Britney Spears, in part, for popularizing the idea that a short marriage should be annulled. (Remember, Britney Spears was only married to Jason Alexander for 55 hours?)
Here are some basic differences in the requirements between New York annulment and divorce.
What are the basics about annulment?
An annulment means that the marriage was void from the very beginning because there was something wrong with the spouses or something happened after the marriage to make one spouse legally incapable of being married. Generally, this means there is a very narrow set of circumstances in which an annulment can take place (aside from being a famous rock-star):
· If either of the spouses is incurably incapable of having sexual relations;
· If one of the spouses is under the age of 18 and wants an annulment;
· If either of the spouses becomes incurably insane for five years or more (note that the sane spouse may be required to support the insane spouse); or
· If either spouse consented to the marriage as a result of force, duress or some instances of fraud.
Certain marriages are not recognized no matter how long the marriage has been in place. For example, marriages between certain relatives or those where bigamy (multiple spouses) has occurred are null. These marriages may be declared null by the issuance of such a declaration by the court (declaration of nullity). Still, a court declaration is needed.
Note that getting an annulment will require a court hearing.
What are the basics about NY divorce?
A divorce, on the other hand, is generally applicable in most cases. In New York, the spouse seeking the divorce must plead grounds for the divorce and the couple must meet residency requirements.
Commonly, most divorces today proceed under "No Fault" grounds for divorce (the marriage is “irretrievably broken” for more than 6 months). Other grounds for divorce include abandonment, adultery or cruel and inhuman treatment.
If the marriage is shorter than six (6) months, you cannot use "No Fault" grounds and you will need other grounds for your divorce. This is because the "No Fault" statute requires that the marriage be "irretrievably broken" for at least six (6) months. Note that this is not a waiting or time requirement for a divorce, but if your marriage is not long enough in duration to meet the requirement you may wait or file on other grounds. If the marriage is longer than six (6) months, and one spouse can swear and affirm that the marriage has been irretrievably broken for at least that length of time, then there is no requirement to wait.
New York has no residency requirement for obtaining a marriage license. However, New York State does have a residency requirement for obtaining a divorce. This may be particularly tricky for couples in a same-sex marriages who are residents of other states. If you came to New York to participate in our state’s marriage equality and received your marriage certificate here, you may have some difficulties if you are residents of a state that has not yet joined modern civilization. Simply put: just because you have a marriage certificate issued by a New York municipality does not mean you automatically qualify for a divorce here.
New York residency requirements for divorce basically ask whether the couple or either spouse has a "relationship" with New York. Residency requirements may be difficult to assess so you should discuss with a lawyer whether you think you meet the requirements. Very generally, most couples meet the requirement if:
· The spouses were married in New York State or lived here as spouses at any time during the marriage, and one of them resides in the State when the divorce action begins, and that person has lived in New York continuously for one (1) year before the divorce action begins; OR
· Either spouse has been a resident of New York State for a continuous period of two (2) years prior to the start of the action for divorce. (For example, if Meg has resided continuously in Texas and Marge has lived in Brooklyn for two years, then Marge can seek the divorce in New York courts.)
Important distinctions for divorce and annulment
Unlike an annulment, an uncontested divorce generally does not need to have any court hearings.
Another important distinction to discuss with an attorney is that in a divorce one spouse may be entitled to maintenance ("alimony"), property division of marital assets and counsel fees. The importance of protecting your rights to property acquired during the marriage cannot be stressed enough.
Even if you and your spouse cannot agree about issues of custody or support, you can always opt to see a divorce mediator (a single unbiased person who will help you work out an agreement) as opposed to going to court.
Practically speaking, of course, whether the court grants a divorce, annulment or declaration of nullity, the legal result is the same: the dissolution of the marriage.
Morghan Richardson is a family and divorce attorney and mediator in New York City. She juggles her Queens-based law practice with her other job as the single mom of two preschool-aged boys, Hayden and Ozzie.
Her firm is:
Richardson Legal PLLC
31-08 Broadway, Suite 204
Astoria, New York 11106