Why Most Couples Do Not Qualify for an Annulment in New York

People going through a short or troubled marriage often ask about annulment before they ask about divorce. An annulment does not just end a marriage. It treats the marriage as though it never legally existed.

The problem is that most people who want an annulment do not qualify for one. New York law does not recognize a short marriage, a marriage that never produced children, or a marriage in which the parties never lived together as grounds for annulment. Those are common assumptions. None of them are recognized anywhere in New York's annulment statute.

Annulment in New York is available only on specific grounds defined in the Domestic Relations Law. If none of those grounds apply, the only option is divorce.

Void Marriages vs. Voidable Marriages: Why the Distinction Matters

New York law draws a clear line between marriages that are void and marriages that are voidable. The distinction determines what is required to undo the marriage and who has the right to challenge it.

A void marriage is one that was never legally valid to begin with. It does not require a court proceeding to be treated as a nullity, though either party or an interested third party can seek a court declaration confirming that fact. The two categories of void marriage under New York law are incestuous marriages, governed by DRL § 5, and bigamous marriages, governed by DRL § 6.

A voidable marriage is legally valid until a court annuls it. It cannot simply be ignored. One of the parties must bring an action under DRL § 140, establish the grounds, and obtain a judgment of annulment. If no court action is brought, the marriage remains valid.

The Grounds for Annulment Under New York Law

New York's annulment statute, DRL § 140, sets out the specific grounds on which a voidable marriage can be annulled. Each ground has its own requirements, its own time limitations, and in some cases, its own bars that can defeat the claim even when the underlying facts are present.

Bigamy (DRL § 6)

A marriage is absolutely void if one party had a living spouse from a prior marriage that was still in force at the time of the second marriage. No court action is necessary to establish the invalidity, though either party or the prior spouse can bring an action to have the nullity declared. The prior marriage must not have been annulled or dissolved before the second marriage was contracted.

Incestuous Marriage (DRL § 5)

Marriages between certain relatives are void under New York law regardless of whether the parties were aware of the relationship. The prohibited relationships are: an ancestor and a descendant, a brother and sister of either the whole or the half blood, and an uncle and niece or an aunt and nephew. Whether the parties are related by blood or through illegitimate descent does not affect the analysis.

Underage Marriage (DRL § 140(b))

Since August 21, 2021, when New York raised the minimum marriage age to 18 with no exceptions, any marriage in which either party was under 18 at the time of the ceremony is voidable. An action can be maintained by the underage party, either parent, or a guardian. A party who was of legal age at the time of the marriage cannot use this ground. Voluntary cohabitation after reaching the age of consent bars the annulment.

Mental Illness or Developmental Disability at the Time of the Marriage (DRL § 140(c))

A marriage can be annulled on the ground that one of the parties was a person with a mental illness or a developmental disability at the time of the marriage. This ground addresses incapacity that existed when the marriage was entered into, not a condition that developed afterward. The action can be maintained by a relative with an interest to avoid the marriage, or by the person with a mental illness after restoration to sound mind, provided the parties did not freely cohabit after that restoration.

Physical Incapacity (DRL § 140(d))

This ground is far narrower than most people expect. It does not refer to illness generally. It refers specifically to an incurable inability to consummate the marriage. The incapacity must be ongoing, and the action must be brought within five years of the marriage. A party who knew of the incapacity and knew it was incurable at the time of the marriage cannot use this ground.

Duress or Force (DRL § 140(e))

A marriage entered into under force or duress can be annulled by the party whose consent was obtained in that way. There is no time limit on this ground. However, if the parties voluntarily cohabited as husband and wife, in other words, voluntarily resumed the marital relationship, at any time before the action was brought, the annulment is barred. The cohabitation need not be lengthy. Any voluntary resumption of the marital relationship after the duress ended can defeat the claim.

Fraud (DRL § 140(e))

Not every lie told before marriage is legal fraud. Fraud is the ground most commonly raised and most frequently misunderstood. An action to annul on the ground of fraud must be brought within the limitations period for enforcing a civil remedy under the CPLR. More importantly, New York courts require that the fraud go to the very essence of the marriage. Ordinary misrepresentation does not qualify.

Courts have found fraud going to the essence in cases involving concealment of the intent never to have children with the other spouse, concealment of a sexually transmitted disease or other serious physical condition that directly affects the other spouse, and concealment of the intent never to live with the other spouse as husband and wife. Courts have rejected fraud claims based on misrepresentations about finances, employment, or personal history that do not go to the core of what the parties were agreeing to when they married.

As with duress, voluntary cohabitation after full knowledge of the fraud bars the annulment.

Incurable Mental Illness for Five Years (DRL § 140(f) and § 141)

A marriage can be annulled on the ground that one of the parties has been incurably mentally ill for a continuous period of five years or more. This is a distinct ground from mental illness at the time of the marriage. The process under DRL § 141 requires the court to appoint three physicians who are recognized authorities on mental illness, all of whom must agree that the condition is incurable. If the marriage is annulled on this ground, the court may require the other party to provide for the support and maintenance of the ill spouse during life.

What Does Not Qualify as a Ground for Annulment

A short marriage is not a ground. New York law contains no provision allowing annulment simply because the parties were married for a brief period. A marriage of two months and a marriage of twenty years are treated identically under the statute. The length of the marriage is not a factor in determining whether annulment is available.

Never living together is not a ground. The parties' failure to establish a shared household, whether by choice or circumstance, does not appear anywhere in the annulment statute.

Having no children is not a ground. The presence or absence of children from the marriage has no bearing on whether an annulment is available.

General unhappiness, incompatibility, or regret about getting married are not grounds. Courts do not grant annulments because the marriage turned out to be a mistake. That is what divorce is for.

Why Annulments Are Relatively Rare

Annulments receive a great deal of attention because many people assume they are a simpler alternative to divorce. In practice, they make up only a small percentage of matrimonial cases in New York because the law limits them to very specific circumstances. Most marriages, even very short ones, end through divorce rather than annulment. That is not a failure of the system. It reflects how narrow the statute is.

Annulment vs. Divorce: What Changes and What Does Not

The legal effect of an annulment is different from divorce in a meaningful way. A divorce ends a valid marriage. An annulment declares that the marriage was not legally valid. That distinction carries consequences.

In an annulled marriage, the court retains the authority to address child custody, parenting time, and child support for any children born of the relationship. The legal status of the children is not affected by the annulment. New York law protects the rights of children born of marriages that are later annulled.

The court also retains discretion to address property and support issues in appropriate cases. Spousal maintenance is not automatically available after an annulment the way it is structured in a divorce proceeding, though courts retain discretion to address support in appropriate circumstances, and when a marriage is annulled on the ground of incurable mental illness, the court may order lifetime support for the ill spouse.

How These Cases Play Out in Practice

The fraud ground produces the most litigation, and also the most disappointment. People arrive believing that a lie their spouse told before the wedding qualifies as fraud. Most of the time, it does not. The legal standard, fraud going to the essence of the marriage, is narrower than most people expect. A spouse who misrepresented how much money they had, where they grew up, or what they did for work has not committed fraud in the legal sense recognized by New York courts. A spouse who concealed that they had no intention of ever having children, or that they were already married to someone else, is in different territory.

The more common outcome for couples who do not qualify for an annulment is an uncontested divorce. In Nassau County, an uncontested divorce proceeds on the ground of irretrievable breakdown of the marriage, which has been available in New York since 2010 and does not require proof of fault. For a couple who simply wants to end the marriage and start over, that is usually the faster and more straightforward path.

Contact the Law Office of Anthony J. LoPresti

If you are wondering whether your situation qualifies for an annulment, speaking with an experienced annulment lawyer before making any decisions can clarify your options and prevent you from pursuing a path that is not available under New York law. If you have already been told you do not qualify and want to understand what comes next, the Law Office of Anthony J. LoPresti handles matrimonial matters for clients throughout Nassau County and Long Island. Call 516-252-0223 or visit nassaufamilylaw.com.