Edward R. Weinstein, Esq.

What is the Difference Between A Divorce and an Annulment in New Jersey?

When a marriage falls apart people often wish they may pretend the whole thing never happened. Many would love to take magic wand and wipe the slate clean. Imagine, POOF, the marriage never occurred. Well perhaps there is a way to wipe the slate clean and pretend you were never married. This is called an annulment. While many folks believe that a marriage of short duration qualifies for an annulment, divorce lawyers here in New Jersey understand that this is not the case. Instead, one must show, “ in the inducement” to marry. What does this mean?

LIZ

Following please find a case handled by the exceptional and budding prodigy associate attorney with my law firm, Elizabeth Rozin-Golinder, Esq.

In my practice many people often ask whether they are able to annul their marriages. While the same is not exactly the same thing as going back in time and erasing the entire marriage, it can give people the emotional closure they need if they prefer never to say they are divorced. Please note that not every case is eligible for annulment and that the same is a very fact specific case by case basis.

Some time ago I represented a woman who very much desired to have an annulment. The story is as follows. My client, who I shall call Jean, had an arranged marriage. She was able to meet her husband and get to know him prior to marrying him. The couple “dated” for about one year. They discussed their plans for a family and future goals and life together. A year after the parties were introduced they were married in a lavish wedding and shortly thereafter my client became pregnant. In the early stages of her pregnancy Jean made a shocking discovery. It turned out that her husband had lied to her the entire time they were dating and that he was actually gay. While Jean had no problem with gays, she felt as though she had been tricked into marrying her husband and that she married him under false pretenses. She came to know that her husband has always been gay, and that his family was aware of the same. The actual purpose of the marriage was to hide the fact he was gay. Jean also came to know that her husband was in a serious relationship with another man and had been in the relationship since before Jean had married him. Given the fact that Jean’s marriage was based on a lie she wanted to annul the same. The question was could she do it?

In New Jersey a Family Court has the power to declare certain types of marriages void, also known as, annulled. The major difference between a divorce and annulment is that the cause for the end of the marriage must be present before the marriage takes place, while with a divorce the cause occurs during the marriage.

Many people have the misconception that the only way a marriage can be annulled is if the parties never consummated the marriage. This is not true. If the facts of the case meet the criteria for an annulment, a party can annul a marriage even after 30 years, and alimony and child support can still be awarded.

So how do you know if you qualify to have your marriage annulled? Pursuant to N.J.S.A. 2A:34-1:

(1) Judgments of nullity of marriage may be rendered in all cases, when:

  1. Either of the parties has another wife, husband, partner in a civil union couple or domestic partner living at the time of a second or other marriage.
  2. The parties are within the degrees prohibited by law. If any such marriage shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party.
  3. The parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, and has not subsequently ratified the marriage.
  4. The parties, or either of them, lacked capacity to marry due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the marital relationship; duress; or fraud as to the essentials of marriage; and has not subsequently ratified the marriage.
  5. The demand for such a judgment is by the wife or husband who was under the age of 18 years at the time of the marriage, unless such marriage be confirmed by her or him after arriving at such age.
  6. Allowable under the general equity jurisdiction of the Superior Court.

For Jean’s case we shall focus on fact “d”. Jean felt as though there was a fraud as to the essentials of the marriage. She did not ratify the marriage as she ceased all intimacy with her husband after discovering his homosexuality and moved from the marital residence. The question that would remain for the Court to answer was whether Jean’s husband hiding his homosexuality goes to the essentials of a marriage. You can see why there is a need to analyze the facts on a case by case basis of each application for an annulment. In order to prove that the fraud goes to the essentials of the marriage one must show that the fraud is of sufficient materiality as to strike at the very core of the marital relationship. For instance, telling your husband you like the Giants while secretly loving the Eagles would most likely not (in most households) go to the essentials of the marital relationship. However, a concealment of a serious drug addiction prior to marriage could. The Court has held that there can be no valid marriage if there is no intent to enter into a valid marital relationship.

In Jean’s case it was obvious that her husband did not indent to enter into a valid marital relationship. He withheld the fact that he was a homosexual from Jean and married her knowing he was in a homosexual relationship. Jean was never aware of the fact that her husband was gay and would not have married him had she been aware of this fact. The Court found that Jean qualified for an annulment and granted the same. They also granted her child support after the baby was born.

If you feel as though you would qualify for an annulment and need help, please do not hesitated to contact our office for a free consultation.