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Do you need an annulment or a divorce?

Sometimes when couples decide to split and see their family law attorney about a divorce, during the course of the consultation it becomes evident to the attorney that what their client actually needs is an annulment instead of a divorce. But what circumstances are applicable for an annulment?

A civil annulment is completely different from the type of an annulment a divorced couple can seek from the Catholic church in order for one or both of the parties to be free to remarry in the church. In order to determine whether an annulment or a divorce is appropriate in the state of New York, you first have to consider the circumstances of the marriage. Annulments are the way to end marriages that were never valid to begin with.

Certainly any marriage between blood relatives would have grounds for annulment, whether the parties knew they were related or not. Below are some other circumstances that would be considered null and void according to the New York Family Code.

-- If either the wife or the husband was underage

-- If one of the parties was still legally wed to another spouse in an undissolved prior marriage

-- If consent to marry was obtained by force, fraud or duress

-- If either the husband or wife was incapable of consenting due to the marriage because of mental or psychological incapacity

-- If one of the parties to the marriage suffered for five or more years from an incurable mental illness

-- If a spouse was physically incapable of consummating the marriage consent by force, duress or fraud

There are no time constraints for obtaining an annulment to end an invalid marriage, as the length of time that passes cannot give validity to the marriage, except under specific circumstances, such as the underage spouses attaining their legal age and continuing to cohabit.

If a marriage is invalid because of mental illness, but the person recovers and freely remains cohabiting with their wife or husband after their sound mind is restored, the marriage is valid.

There are more caveats involved, making this a subject best broached with your family law attorney as soon as possible after the marriage.

Source: Findlaw, "New York Annulment and Prohibited Marriage Laws," accessed Dec. 16, 2015

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