Brian D. Perskin & Associates

Annulments, Divorce, and Legal Separation

New Yorkers looking to part ways with their spouse have three options: an annulment, divorce, or legal separation. Before filing a court action, you need to determine which path is right for you. To make it easier, we have outlined the three below.

Annulments in New York

An annulment is different than a divorce, because an annulment makes the marriage null or void. This means that the marriage never happened. Contrary to popular belief, a couple cannot receive an annulment based on the short duration of their marriage. Instead, they must meet one of the following criteria before bringing forth an action for an annulment:

  • One, or both, spouses were under the age of 18 at the time of marriage;
  • Either spouse was unable to consent to the marriage due to a mental incapacity or impairment;
  • Either spouse has been deemed to be incurably mentally ill for a minimum of 5 years;
  • Either spouse is unable to have sexual intercourse or relations with their spouse; or
  • The marriage was entered into by either spouse under duress, fraud, or coercion.

The party who files for an annulment, known as the Plaintiff, bears the burden of proving one of the qualifying grounds to be true and valid. This is often more complicated and time consuming than uncontested divorce actions. Amicable couples are encouraged to file for an uncontested divorce rather than an annulment if they are looking for a faster and less costly way to end their marriage.

It is important to note that New York is a “no-fault” state, meaning a specific reason for divorce doesn’t necessarily have to be listed in a filing. Couples interested in a “no-fault” divorce instead of an annulment need to be married for a minimum of 6 months before bringing an action, so they can swear to the court that their relationship has been in a state of “irreconcilable breakdown” for the legally allowed period of 6 months.

Legal Separation

Legal Separation is a great alternative to divorce when a couple doesn’t want to be together, but also do not want to terminate their marriage. These couples will negotiate a Separation Agreement, which is a detailed contract that outlines the responsibilities each party has in regards to child or spousal support, custody, the division of property, and other financial obligations. If parties ultimately decide to proceed with divorce, their Separation Agreement will be used as a point of reference for a Stipulation of Settlement.

Since parties are still considered to be married during a legal separation, they maintain all of the benefits they shared with their spouse. The major benefits to legal separation are:

  • The continuation of health insurance coverage that would otherwise terminate with divorce;
  • Being able to file joint tax returns;
  • Maintaining a married status allows spouses to qualify for Social Services or retirement benefits; and
  • Using legal separation as a “trial run” for divorce to see if it is the right course of action.

A legal separation is handled in the same manner as divorce, with the Plaintiff filing a Summons and having their spouse, the Defendant, personally served with documents. Personal service informs the Defendant that an action has commenced. Each party should retain their own matrimonial or family law attorney to counsel them throughout the process. It is common for the same lawyer who handled a legal separation to represent their client during divorce (if it should come to that).

Divorce

Divorce is the most common way for New York couples to end their marriage. Like an annulment, a divorce will dissolve a marriage, however, you will be considered to be “divorced” for legal purposes, as opposed to “single” (like with an annulment).

As stated previously, New York is a “no-fault” divorce state, meaning couples don’t need to have a specific reason that they want to terminate their marriage. A plaintiff can simply claim their relationship has been in a state of irreconcilable breakdown while filing a Summons. That being said, New York does recognize 6 other grounds for divorce:

  • Cruel and inhumane treatment;
  • Abandonment for a continuous period of one year or more;
  • Adultery;
  • Imprisonment for more than three years after the date of marriage;
  • Conversion of a separation judgment; and
  • Conversion of a written and acknowledged separation agreement after living apart for more than one year.

Whichever party is claiming one of the above grounds, usually the Plaintiff, must present sufficient evidence to the court in support of their claim. It is not unusual for a Defendant to disagree with one of the 6 other grounds for divorce, and when this happens, the case can become contested.

Before a judge can issue a Judgment of Divorce, parties must reach an agreement addressing child support and custody/visitation, equitable distribution, and maintenance. If parties and their attorneys can not reach an agreement, the court will intervene, and a trial will be held. Many hours of preparation, motion practice, discovery production and review, and negotiations will be spent prior to the trial date. While it is possible to pursue an uncontested divorce without proper legal counsel, the same can not be said for a contested action. Doing so will be incredibly damaging to your case, and you may be unable to rectify any wrongdoings once a Judgment is issued.

Free Consultations

For more information regarding the different ways to dissolve a marriage, contact the New York City family law firm of Brian D. Perskin & Associates P.C. to schedule a free consultation. Discussing your options with an experienced and knowledgeable divorce attorney is the first step to figuring out which course of action is right for you and your family. Deciding to proceed with a divorce or legal separation isn’t always easy, but being well informed can make the process a little less stressful and nerve-wracking. Call 718-857-7584, or visit us online, today!