New York residents seeking to end a marriage must choose between annulment and divorce, two legal pathways with fundamentally different consequences. An annulment declares that a valid marriage never existed, returning both parties to single status under New York Domestic Relations Law § 140. A divorce, by contrast, legally terminates a valid marriage that existed. The filing fee for both proceedings is $335 in New York Supreme Court, and residency requirements under DRL § 230 require either one or two years of continuous residence depending on where the marriage occurred. Understanding these distinctions is critical because annulment grounds are narrow and require substantial proof, while no-fault divorce under DRL § 170(7) requires only a sworn statement that the marriage has been irretrievably broken for six months.
Key Facts: Annulment vs. Divorce in New York
| Factor | Annulment | Divorce |
|---|---|---|
| Filing Fee | $335 | $335 |
| Legal Effect | Marriage declared void from inception | Valid marriage legally terminated |
| Grounds Required | Specific grounds under DRL § 140 (fraud, bigamy, incapacity, duress, incurable mental illness, physical incapacity, underage) | No-fault (irretrievable breakdown for 6 months) or fault grounds under DRL § 170 |
| Property Division | Equitable distribution applies but limited claims | Full equitable distribution under DRL § 236 |
| Spousal Support | Rarely awarded | Available based on statutory factors |
| Burden of Proof | Petitioner must prove specific ground | Simple sworn statement for no-fault |
| Timeline | 3-12 months depending on ground complexity | 6 weeks to 18 months depending on contested status |
| Residency Requirement | Same as divorce under DRL § 230 | 1-2 years under DRL § 230 |
What Is an Annulment in New York?
An annulment in New York is a court order declaring that a marriage was invalid from its inception and therefore never legally existed. The New York Supreme Court has jurisdiction over annulment actions under Domestic Relations Law Article 9, which specifies six distinct grounds for annulment of voidable marriages plus grounds for declaring void marriages. Unlike divorce, which acknowledges that a valid marriage existed and then terminates it, annulment treats the union as if it never occurred. Both parties return to single status rather than divorced status. The legal distinction matters for religious reasons, immigration consequences, and inheritance rights. Annulments are granted in fewer than 5% of marriage dissolution cases in New York because the statutory grounds are narrow and the burden of proof falls entirely on the petitioner.
New York distinguishes between void marriages and voidable marriages. Void marriages under DRL §§ 5, 6, and 7 were never legal and include bigamous marriages and incestuous unions between close relatives. These marriages are automatically invalid, though courts often issue declaratory judgments to formalize this status. Voidable marriages were legally valid at formation but can be invalidated through annulment based on defects in consent or capacity that existed at the time of marriage.
What Is a Divorce in New York?
A divorce in New York legally terminates a valid marriage through court judgment, allowing both spouses to remarry. Since October 12, 2010, New York has recognized no-fault divorce under DRL § 170(7), requiring only a sworn statement that the relationship has been irretrievably broken for at least six months. The filing fee is $335, comprising a $210 index number fee and $125 Note of Issue fee. Uncontested divorces where parties agree on all terms can finalize in as few as 6 weeks, while contested matters typically take 9 to 18 months. New York applies equitable distribution under DRL § 236 to divide marital property fairly based on 16 statutory factors rather than splitting assets 50/50 like community property states.
Effective March 1, 2026, revised forms reflect updated income caps under the Child Support Standards Act (increased from $183,000 to $193,000) and the Maintenance Guidelines Act (increased from $228,000 to $241,000). Additionally, Chapter 673, Laws of 2025, created a no-fault separation option and reduced the separation period required for divorce grounds under DRL §§ 170(5) and 170(6) from one year to six months.
Six Grounds for Annulment in New York Under DRL § 140
New York law provides six specific grounds for annulment of voidable marriages under DRL § 140, each with distinct requirements and time limitations. The burden of proof rests entirely on the party seeking annulment, and courts require substantial evidence beyond mere allegations.
1. Bigamy (Former Spouse Living) Under DRL § 140(a)
A marriage is void when one party had a living spouse from a prior marriage that was never legally dissolved. Either spouse or the prior spouse may bring an action to declare the marriage void at any time during the lifetime of both parties. Bigamy is also a Class E felony in New York, carrying potential criminal penalties of up to four years imprisonment. No time limit applies to this ground because bigamous marriages are void ab initio (void from the beginning).
2. Underage Marriage Under DRL § 140(b)
New York sets the age of consent to marry at 18 years old under DRL § 7(1). If either party was under 18 at the time of marriage, an annulment action may be brought. However, the right to seek annulment on this ground terminates when the underage spouse reaches 18. After that birthday, the marriage becomes ratified and this ground is no longer available.
3. Mental Incapacity Under DRL § 140(c)
A marriage may be annulled when one party lacked mental capacity to consent due to developmental disability or mental illness at the time of marriage. Any relative of the incapacitated person who has an interest in avoiding the marriage may bring this action at any time during either party's lifetime. The petitioner must prove that the incapacitated person could not understand the nature and consequences of the marriage contract.
4. Physical Incapacity Under DRL § 140(d)
Non-consummation annulment requires proof that one spouse has an incurable physical incapacity preventing sexual intercourse. This action must be commenced within five years from the date of marriage. The physical condition must have existed at the time of marriage and must be incurable. Courts will not grant annulment if the condition developed after marriage or if the couple consummated the marriage at any point.
5. Fraud or Duress Under DRL § 140(e)
Consent obtained through force, duress, or fraud renders a marriage voidable. For fraud-based annulments, the deception must go to the essence of the marriage contract, such as concealment of inability to have children, prior criminal history, or intention never to consummate the marriage. The statute of limitations for fraud is three years from discovery of the fraud. For duress, no time limit applies, but the action cannot proceed if the couple voluntarily cohabited after the duress ended. Courts require proof that cohabitation did not continue with full knowledge of the fraud or after duress ceased.
6. Incurable Mental Illness for Five Years Under DRL §§ 140(f) and 141
An annulment may be granted when one spouse has suffered from incurable mental illness for five consecutive years or more. DRL § 141 establishes strict procedural requirements: the court must appoint three qualified physicians who are recognized experts in mental illness, and all three must independently agree in written reports that the spouse suffers from incurable mental illness lasting at least five years. Even if annulment is granted, the court may order the other spouse to provide lifetime support, care, and maintenance for the mentally ill spouse.
Void vs. Voidable Marriages in New York
New York law distinguishes between marriages that are automatically void and those that are voidable through annulment proceedings. This distinction affects which statutory provisions apply and what procedures parties must follow to formally end the marriage.
| Category | Examples | Legal Status | Who Can Challenge | Time Limit |
|---|---|---|---|---|
| Void (DRL §§ 5, 6) | Bigamy, incest between close relatives | Never legally valid | Either spouse, third parties with interest | None |
| Voidable (DRL § 140) | Fraud, duress, underage, mental incapacity, physical incapacity | Valid until court declares invalid | Only affected spouse (generally) | Varies by ground: 3-5 years or none |
Void marriages under DRL § 5 include incestuous unions between parents and children, siblings, aunts/uncles and nieces/nephews. DRL § 6 voids bigamous marriages where one spouse had a living prior spouse. These marriages require no formal annulment because they were never legally valid, though parties typically seek declaratory judgments under CPLR 3001 to obtain court documentation of the void status.
Voidable marriages remain legally valid until a court grants an annulment under DRL § 140. The defective consent or capacity existed at the time of marriage, but the marriage produces legal effects unless and until challenged. Only the affected party can generally bring an annulment action for voidable marriages, unlike void marriages which third parties may challenge.
Residency Requirements for Annulment and Divorce
Both annulment and divorce actions in New York must satisfy the jurisdictional residency requirements of DRL § 230. New York law provides five alternative ways to establish residency, and petitioners need only satisfy one of these five options.
| Residency Option | Requirement | Continuous Period |
|---|---|---|
| Option 1 | Married in New York, either party is resident | 1 year preceding filing |
| Option 2 | Lived in New York as married couple, either party is resident | 1 year preceding filing |
| Option 3 | Cause of action occurred in New York, either party is resident | 1 year preceding filing |
| Option 4 | Cause of action occurred in New York, both parties are residents | No minimum period |
| Option 5 | Either party is resident (no other connection to NY) | 2 years preceding filing |
Under New York law, domicile and residence are synonymous for these purposes. Mere physical presence is insufficient; the party must intend to make New York their permanent home. If neither spouse meets any of the five residency requirements, New York courts lack jurisdiction over the action and parties must file in another state where residency requirements are satisfied.
Property Division: Annulment vs. Divorce in New York
New York applies equitable distribution under DRL § 236 to divide marital property in both annulment and divorce proceedings. However, the practical application differs significantly between the two proceedings because annulment treats the marriage as if it never existed, affecting property characterization and spousal support availability.
Equitable Distribution Factors
New York courts consider 16 statutory factors when dividing marital property, including: income and property at marriage and divorce, duration of marriage, age and health of parties, need for custodial parent to occupy the marital residence, loss of pension and health insurance rights, and direct or indirect contributions to marital property acquisition. Unlike community property states that divide assets 50/50, New York courts have discretion to divide property in whatever manner is fair based on these factors. The equitable distribution process operates in three phases: classification (determining which assets are marital versus separate property), valuation (assessing fair market value as of divorce commencement date), and distribution (applying statutory factors to determine each spouse's share).
Property Division Differences in Annulment
In annulment proceedings, courts apply equitable distribution principles but attempt to place each spouse back in the position held before the marriage. This approach can limit claims on retirement plans, business growth, or other assets that accumulated during the union. Because the marriage is treated as void from inception, arguments about marital property acquired during the marriage may face different treatment than in divorce. Separate property includes assets owned before marriage, inheritances, gifts received by one spouse, and personal injury compensation, provided these assets were not commingled with marital property.
Spousal Support Availability
Spousal maintenance (alimony) is routinely analyzed and awarded in divorce proceedings based on statutory factors including income disparity, marriage duration, and each party's ability to become self-supporting. In annulment proceedings, spousal support is rarely awarded because the marriage is treated as if it never existed. The notable exception is annulment based on incurable mental illness under DRL § 141, where courts may order the other spouse to provide lifetime support for the mentally ill spouse even though the marriage is annulled.
Children and Custody in Annulment vs. Divorce
An annulment does not affect the legitimacy of children born during the marriage. Children born to parents who were married in a valid ceremony are considered legitimate heirs under New York law, even if a court later annuls the marriage. Both annulment and divorce proceedings can include custody determinations, parenting time schedules, and child support orders.
Child support is mandatory in both proceedings regardless of how the marriage ends. New York calculates child support under the Child Support Standards Act using the combined parental income approach. As of March 1, 2026, the combined income cap increased from $183,000 to $193,000. The basic child support obligation is: 17% of combined parental income for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Each parent's share is proportional to their percentage of combined income.
Timeline Comparison: Annulment vs. Divorce
Annulment cases typically take 3 to 12 months depending on the complexity of the grounds and whether the other spouse contests the action. Contested annulments involving fraud allegations require discovery, expert testimony, and trial, extending timelines toward the longer end. Simple uncontested annulments where both parties agree can proceed more quickly.
| Proceeding Type | Uncontested Timeline | Contested Timeline |
|---|---|---|
| Annulment | 3-6 months | 6-12+ months |
| Divorce | 6 weeks - 3 months | 9-18 months |
New York has no mandatory waiting period after filing for divorce. Uncontested divorces with complete paperwork and agreement on all issues can finalize in as few as 6 weeks. Contested divorces involving disputes over property division, custody, or support typically take 9 to 18 months or longer depending on court calendars and complexity. The six-month period under DRL § 170(7) must elapse before filing, not after, making it a pre-filing requirement rather than a post-filing waiting period.
How to Choose Between Annulment and Divorce in New York
The choice between annulment and divorce depends on whether valid annulment grounds exist, religious considerations, immigration implications, and practical factors like timeline and cost. Most New York residents seeking to end a marriage will pursue divorce because annulment grounds are narrow and require substantial proof, while no-fault divorce requires only a sworn statement.
Consider Annulment If:
- You can prove one of the six statutory grounds under DRL § 140
- Religious beliefs require declaring the marriage void rather than divorced
- The marriage was recent and qualifies for fraud, bigamy, or underage grounds
- Immigration consequences favor annulment over divorce
- You have evidence sufficient to meet the burden of proof
Consider Divorce If:
- You cannot prove specific annulment grounds
- The marriage lasted more than five years (physical incapacity ground expires)
- You discovered fraud more than three years ago
- You voluntarily cohabited after discovering fraud or after duress ended
- You prefer the simpler no-fault process with lower burden of proof
- You want to preserve spousal support eligibility
Filing Costs and Court Fees in New York
The total filing cost for both annulment and divorce in New York Supreme Court is $335, broken down as follows:
| Fee Type | Amount |
|---|---|
| Index Number Filing Fee | $210 |
| Note of Issue Fee | $125 |
| Motion Fee (if applicable) | $45 per motion |
| Certified Copy of Judgment | $8 per copy |
| Settlement Agreement Filing (if applicable) | $35 |
Fee waivers are available through the Poor Person Relief program for income-eligible filers. Eligibility requires income at or below 125% of federal poverty guidelines. These fees are current as of March 2026. Verify with your local clerk before filing as court fees may change.
Frequently Asked Questions
How long do you have to be married to get an annulment in New York?
New York has no minimum marriage duration requirement for annulment. You can seek annulment immediately after marriage if valid grounds exist under DRL § 140. However, certain grounds have time limits: physical incapacity claims must be filed within 5 years of marriage, fraud claims within 3 years of discovery, and underage marriage claims before the minor turns 18. Bigamy and duress grounds have no time limits.
What qualifies as fraud for an annulment in New York?
Fraud for annulment purposes must go to the essence of the marriage contract, not merely be incidental deception. Qualifying fraud includes concealment of inability to have children, prior criminal history, secret intention never to consummate the marriage, or misrepresentation of religious beliefs when religion was a fundamental basis for marriage. The three-year statute of limitations runs from discovery of the fraud, not from the wedding date.
Is it harder to get an annulment or divorce in New York?
Annulment is significantly harder to obtain than divorce in New York. No-fault divorce under DRL § 170(7) requires only a sworn statement that the marriage has been irretrievably broken for six months, while annulment requires proving one of six specific statutory grounds with substantial evidence. Courts grant annulments in fewer than 5% of marriage dissolution cases because the burden of proof falls entirely on the petitioner.
Can you get spousal support with an annulment in New York?
Spousal support is rarely awarded in annulment proceedings because the marriage is treated as if it never legally existed. However, courts may order support in annulments based on incurable mental illness under DRL § 141, where the spouse may be required to provide lifetime support for the mentally ill former spouse. Property division through equitable distribution principles still applies to annulment cases.
What happens to children if parents get an annulment?
An annulment does not affect the legitimacy of children born during the marriage. Children remain legitimate heirs under New York law. Courts will still establish custody arrangements, parenting time schedules, and child support orders in annulment proceedings using the same standards applied in divorce cases. Child support is calculated under the Child Support Standards Act with the combined income cap of $193,000 as of March 2026.
How much does an annulment cost compared to divorce in New York?
Both annulment and divorce have identical filing fees in New York Supreme Court: $335 total ($210 index number fee plus $125 Note of Issue fee). However, contested annulments requiring expert testimony and extensive discovery may incur higher attorney fees than uncontested divorces. Simple uncontested annulments where both parties agree may cost less than contested divorces with complex property division disputes.
Can you remarry after an annulment in New York?
Yes, you can remarry immediately after an annulment is granted because the annulment declares that a valid marriage never existed. You return to single status rather than divorced status. There is no waiting period to remarry after annulment in New York, unlike some states that impose waiting periods after divorce.
What is the difference between a void and voidable marriage in New York?
A void marriage was never legally valid and includes bigamous marriages (DRL § 6) and incestuous marriages between close relatives (DRL § 5). These marriages require no formal annulment but parties often seek declaratory judgments. A voidable marriage under DRL § 140 was valid when formed but can be annulled based on defects in consent or capacity, including fraud, duress, mental incapacity, physical incapacity, or underage marriage.
How long does an annulment take in New York compared to divorce?
Uncontested annulments typically take 3-6 months while contested annulments involving complex grounds like fraud may take 6-12 months or longer. Uncontested divorces can finalize in as few as 6 weeks, while contested divorces take 9-18 months. New York has no mandatory post-filing waiting period for either proceeding, though the no-fault divorce ground requires that the marriage be irretrievably broken for 6 months before filing.
Do I need a lawyer for an annulment in New York?
While not legally required, representation by a matrimonial attorney is strongly recommended for annulment proceedings because you must prove specific statutory grounds with substantial evidence. The burden of proof is entirely on the petitioner, and courts will not grant annulment based on mere allegations. Attorneys can gather evidence, retain expert witnesses for mental illness or physical incapacity grounds, and navigate the procedural requirements that differ from standard divorce practice.