What Is the Difference Between Annulment and Divorce?

It is easy to assume that a marriage annulment and a divorce are the same thing. After all, they both end a marriage. This is true, but the major difference is in how the law views the marriage.

Divorce Is the Ending of a Marriage

Legally, divorce is the ending of a marriage that existed. Two people were married, and there is a record of that marriage. It existed, but it is no more. Between partners, divorce sends a direct message, “I no longer choose to be married to you.” It marks the ending of one chapter in someone’s life and the beginning of a new chapter.

Because divorce is the ending of something, it has criteria that must be met. It must be justified. The law that once recognized two people as family members will now see them as unconnected individuals, and there needs to be grounds for that change.

In New York, there are several justifiable grounds for divorce.

Irretrievable Breakdown

This is sometimes known as “irreconcilable differences.” The court must see that for at least six months, the two parties failed to resolve their differences, and the marriage is fundamentally broken. It does not need to be based on matters of specific harm or betrayal. Sometimes two people cannot function as a couple properly, and that’s what you must show the court. In an irretrievable breakdown, the court must clear up all matters of child custody, spousal support, asset division, etc. before it will grant the divorce.

Cruel and Inhuman Treatment

New York courts grant divorces for relationships plagued by abuse. Abuse can be direct, such as beating, sexual assault, and so forth. It can also be indirect. Emotional abuse; imprisoning someone in their home; monitoring someone’s communications; cutting someone off from their family; etc. are also examples of abuse.


If one of the spouses disappears for at least a year, the other has grounds to file for a divorce based on “abandonment.” This is not the same as someone who went missing for a terrible reason like a kidnapping or mental breakdown. Abandonment is an intentional act, where one party vanishes and doesn’t keep contact with the other.


If you are married to someone who has been incarcerated for at least 3 years, you can file for a divorce. This can happen while they are incarcerated or even after they are released. However, upon release, there is a stipulation.

If you stay with your spouse for at least 5 years after their release, you cannot use their imprisonment as grounds for divorce. The state assumes that after five years or more, you must have wanted to stay in the marriage. If you want a divorce, you will need another reason to file.


This category should be unsurprising and requires little elaboration. If you discover that your partner has been unfaithful, you have grounds for divorce.

Lengthy Separation

New York is one of many states that recognizes legal separation. In a separation, the couple is still legally married, but they have chosen to live separate lives. There are benefits to choosing a separation, including financial reasons, retaining benefits, child-rearing purposes, etc. Couples may enter into a separation together by filing a separation agreement.

New York can also court-order a separation through a Judgement of Separation or a Decree of Separation. This rarely happens, however, since the process is much like a divorce. Couples usually choose to avoid the hassle and separate amicably.

If a legal separation lasts longer than a year, that is grounds for divorce.

Annulment Is the Invalidating of a Marriage

The final process is legally complicated, but essentially, an annulment wipes a marriage from the record. It simply no longer exists. It is not seen as a marriage that ended. In the eyes of the law, the marriage never really happened.

New York State has very narrow grounds for an annulment.

Either Party Was Underage

It is possible for a minor to get married in New York. If either party is under 18, they require their parents’ written consent to be married. When someone under 16 wants to be married, the marriage must be approved by a judge. If those conditions are not met at the time of the marriage, the marriage can be annulled.

Either Party Was Mentally Incapable of Consent

Through therapy and official documentation, one partner could prove that they were mentally unsound at the time of the marriage, and it can be annulled. This rule could also apply to someone with permanent mental disabilities.

Either Party Is Incapable of Sexual Intercourse

Some people wait until marriage to be intimate. When this is the case, it is possible to discover that you can’t perform sexually until after the marriage. Like the other requirements mentioned above, this inability must be present at the time of the marriage. This does not include someone who could perform sexually in the marriage but lost the ability later.

Either Party Is Mentally Ill with No Hope of Recovery

If one spouse has suffered an incapacitating mental illness for at least 5 years, and they are incurable, the other spouse can annul the marriage. This does not apply to someone who is, for example, functionally depressed. The ill person must be in a debilitating mental state.

Either Party Was Coerced into the Marriage

It may be difficult to imagine, but people are sometime married under duress. Perhaps they found themselves inside a group – like organized crime – that forced them into a marriage under threat. This would be grounds for annulment.

This rule also applies to people who were lied to before a marriage. Maybe they thought their partner was wealthy, only to discover that they were broke after the wedding. Marriages that begin under coercion or fraud may be annulled.

Coercion and fraud may be avoidable with a marital agreement. A lawyer who works with you beforehand can ensure that both parties are entering the marriage willingly. They can also investigate assets and identities, making sure each party is who they claim to be.

Annulments of Long Marriages

Regardless of the marriage’s length, it can be annulled under the above conditions. For a marriage that lasted a long time, there will likely be assets or even children to consider.

In such a situation, couples will need to involve courts, similar to a divorce. Fortunately, the process is much cleaner and easier to determine. With assets, courts can simply trace original ownership, bypassing the need to distribute “community property.” For example, if the car is under one person’s name, that person will keep the car.

When it comes to children, courts always want what is in the “best interest of the child.” Annulling a marriage can make that process simpler in some circumstances. If one of the adults is a stepparent, and has no legal parentage, the legal parent is granted custody. If both parents signed the birth certificate, it may be necessary for the father to re-establish paternity. After that, the two can function as any unmarried people who share children.

If you need help dissolving or annulling a marriage, reach out to us today. Our attorney is experienced in family law, and we can offer you a free, initial consultation. Our number is (347) 378-1170, and you can reach us online.