Terminating a Marriage in NY: Declaration of Nullity and Annulments

Question 1

What are the five causes of action for ending a marriage in NY?

Answer 1

1. Declaration of Nullity
2. Annulment
3. Legal Separation
4. Divorce
5. Dissolution

Question 2

Where is a divorce proceeding litigated?

Answer 2

In NY Supreme Court.

Question 3

What is a declaration of nullity?

Answer 3

When the couple lacked capacity to marry, and that lack of capacity renders their marriage totally void - this is a judicial confirmation that the marriage does not actually exist.

Question 4

If a marriage is declared a nullity, does the couple have to get divorced?

Answer 4

No - because they were never married in the first place.

Question 5

Can one or both spouses waive the defect in capacity?

Answer 5

No - if a marriage is void, it means it does not and never did exist. The defect is non-waivable.

Question 6

What are the two grounds for a null marriage in NY?

Answer 6

1. Bigamy

2. Incest

Question 7

How is an incestuous marriage defined?

Answer 7

Marriage with

1. ancestors (mother/father, grandparents)
2. descendants (children, grandchildren)
3. siblings (whole or half)
4. lineal relatives (up or down one generation - aunts/uncles, nieces/nephews)

Question 8

Is it unlawful to marry a first cousin in NY?

Answer 8

No - marrying a first cousin is not considered “incestuous.”

Question 9

When can married parties seek an annulment?

Answer 9

When there was a lack of capacity, but the marriage is voidable (rather than void).

Question 10

How can a voidable lack of capacity be waived?

Answer 10

By continuing to co-havit after the problem is eliminated or disappears.

Question 11

Can a court deny an annulment if the parties have not waived the lack of capacity?

Answer 11

Yes - the court always has discretion to deny a request for an annulment.

Question 12

What are the six grounds for annulment?

Answer 12

1. Nonage
2. Mental incapacity
3. Duress
4. Fraud
5. Physical incapacity
6. Five years of incurable insanity arising after the date of marriage

Question 13

What is nonage?

Answer 13

Under 14: can never lawfully marry.
14-15: can marry only with consent of both parents and a judge
16-17: can marry only with consent of both parents

Question 14

How can a person who is mentally incapacitated procure an annulment?

Answer 14

Though a guardian or committee.

Question 15

What is the difference between fraud and a lie?

Answer 15

Fraud is a lie about the essential aspect of the marriage prior to the marriage.

Question 16

If one party lies about their religion is the marriage voidable?

Answer 16

Yes - fraud as to religion is considered going to an essential aspect.

Question 17

If one party lies about the intensity of their religious beliefs before marriage, is the marriage voidable?

Answer 17

Yes - lying about the intensity of one’s religious beliefs goes to an essential aspect of the marriage.

Question 18

If you are unable to have kids (and of an age where most people can), can you keep that secret from your fiancé without having a voidable marriage?

Answer 18

No - a marriage is voidable if one party failed to disclose that they were unable to have children when they knew it before the marriage.

Question 19

Can you keep to yourself the fact that you are able to have kids but you could only do so at great medical risk to yourself?

Answer 19

You cannot keep this secret. Keeping it secret will render the marriage voidable.

Question 20

What if you are able to have kids, but you are a carrier of a serious genetic defect, and you know this before the marriage? Can you keep that to yourself?

Answer 20

You cannot keep this a secret. Keeping your status as a carrier of a serious genetic defect will render a marriage voidable.

Question 21

If you are pregnant and you know the person you are marrying is not the father - and you say nothing or lie - what is the status of your marriage?

Answer 21

It is voidable.

Question 22

Will a major misrepresentation about sexual history render a marriage voidable?

Answer 22

Yes, e.g. you were a prostitute before you got married.

Question 23

Can you keep hidden your weirdo sexual proclivities before marriage?

Answer 23

No - you have to disclose these or else your marriage will be voidable!

Question 24

If you lie and tell your fiancé you are a duke and are fabulously wealthy, you marry, and then tell her you are dirt poor and not royalty - what is the status of your marriage?

Answer 24

The marriage is not voidable! Lies about status and money are not considered “essential” and are therefore not grounds for annulment.

Question 25

What is the statute of limitations for seeking an annulment?

Answer 25

Three years from learning of the fraud.

Question 26

What is physical incapacity for purposes of getting an annulment?

Answer 26

The physical inability to have normal and safe sex. This only comes up when the couple has not tried to have sex before marriage. It is about the act of sexual intercourse - not about reproduction, not about a partner not wanting to have sex - they LITERALLY can’t have sex.

Question 27

Is physical incapacity waived by cohabitation?

Answer 27

No - you can’t actually co-habitate because you CAN’T HAVE SEX!

Question 28

What kind of trial will decide a request for annulment on the grounds of physical incapacity?

Answer 28

A bench trial - not a jury.

Question 29

In a request for annulment on the grounds that the spouse has been insane for 5 consecutive years (beginning post-marriage) - how is the insanity diagnosis reached?

Answer 29

Three court-appointed physicians must agree to the diagnosis.