What is the Difference Between a Divorce and an Annulment?

What is the Difference Between a Divorce and an Annulment?

An annulment of marriage is a legal decree that a marriage is void. Unlike a Judgment of Divorce, which recognizes the existence of a marriage and dissolves it, an annulment treats the marriage as if it had never existed. Some spouses prefer an annulment because they believe a divorce carries a stigma. When a spouse wishes to obtain an annulment, the spouse must demonstrate one of the five following causes of action:

  1. Party was a minor when married: A marriage of any person under the age of 18 needs the written consent of both parents. If this requirement is not abided by, the spouses or the spouses’ parents can seek an annulment.
  2. Consent for the marriage is obtained by force, duress or fraud: If a person enters into a marriage due to the force or pressure of another individual, the person forced into the marriage could seek an annulment. Common examples of fraudulent marriages are: marrying for the purpose of obtaining immigration status; claiming to be pregnant to entice someone to marry; and claiming you want to have children when you will not.
  3. Lack of mental capacity to give consent to get married: If an individual or a spouse was mentally ill or incapacitated at the time of the marriage, the marriage may be annulled.
  4. Lack of physical capacity to consummate the marriage: If you or your spouse is physically unable to engage in sexual intercourse, and you did not know of the incapacity at the time of your marriage, the marriage may be annulled as long as you ask for the annulment within the first five years of marriage.
  5. Incurable mental illness for a period of five years or more: If your spouse is mentally ill for more than five years and cannot be cured, you may be able to obtain an annulment.

 

Prior to the enactment of DRL §170(7), a spouse needed to prove one of the following causes of action to obtain a divorce: cruel and inhuman treatment, abandonment, confinement of Defendant in prison for a period of three or more consecutive years after marriage, adultery, or that the spouses have lived apart pursuant to an agreement. See DRL §170. On August 15, 2010, then-Governor David Patterson signed the no-fault divorce bill which affects all divorces commenced on or after October 12, 2010. This provision referred to as the “no-fault divorce” cause of action only requires a spouse to demonstrate that “the relationship between husband and wife has broken down irretrievably for a period of at least six months” to constitute a cause of action for divorce. Since then, a divorce is significantly easier to obtain than an annulment in the State of New York.

 

Nevertheless, a spouse may still wish to pursue a religious annulment if they want to remarry in a church. For example, in the Catholic faith, a spouse cannot remarry in a church until the marriage is thoroughly examined by the local diocesan tribunal and an annulment is rendered. An annulment is granted if the church finds that the marriage actually fell short of at least one of the essential elements required for a binding union. On the other hand, in the Jewish faith, an annulment is not required for remarriage. A husband must obtain a religious divorce, commonly referred to as a Get. Without a Get, the husband and wife even if divorced civilly, are still considered married in the Jewish faith.

 

Effects of an Annulment on Children

If a couple’s marriage results in an annulment, there is no affect on the legitimacy of the children born during the marriage. Both spouses remain responsible for any minor children. A court deciding an annulment, similar to a court in a no-fault divorce, will render orders for custody, visitation and child support.

The Garden City NY family lawyers at Fass & Greenberg can help address whether an annulment or no-fault divorce may be right for you. Contact our office to get started on your case today.

When two parties have a legal disagreement, going to court is the next step that most assume should be taken. Potential clients may believe that a day in court with attorneys and a judge present is the best option. While that does occur, mediation is sometimes a more viable and less costly alternative. If the parties are able to maintain civility and respect for one another, mediation cuts the costs of litigation, which can amount to tens of thousands of dollars. Florence M. Fass and Elena L. Greenberg have extensive experience in both the litigation and mediation arenas. In addition to their extensive mediation training, they each have 35 years of courtroom experience. Their combined training and skills make them the ideal Garden City NY family law attorneys for mediation clients.

What is Mediation?
Mediation is an alternative process to resolve disputes where the two parties try to come up with a solution with the help of a neutral third party. Although not necessary, it is recommended that a mediator have a legal background to ensure an agreement is legally binding. Mediators at Fass & Greenberg are familiar with the laws of New York and can offer guidance in the areas of family law, such as child custody, support and asset distribution to help the parties reach an agreement.

 

Why Should You Hire Us as Your Mediator?

A variety of questions can arise during mediation. One common question is about confidentiality. In New York, the Court of Appeals confronted this issue of mediator confidentiality in Hauzinger v. Hauzinger, 10 N.Y.3d 923 (2008). In this case, during a divorce action, the wife wanted to disclose information which was discussed by the parties during a prior mediation. The husband opposed this disclosure. The court ruled that since the husband had signed a waiver releasing the mediator from maintaining confidentiality, no confidentiality existed. The attorneys at Fass & Greenberg can help address these and other issues which may arise during the mediation process. Contact our office to get started on your case today.

In New York, child support payments are a component of child custody. In most cases, the custodial parent receives direct payments from the noncustodial parent until the child or children reach emancipation. New York has specific requirements for the amount of child support the noncustodial parent must pay, essentially, the child support payments cover the living costs for the child i.e. expenses related to power, water, clothing, and groceries. However, there are additional “add ons” such as medical expenses, summer camp, childcare and extracurricular activities, in addition to basic child support. These expenses are typically shared by the parties on a pro rata basis.

The Basis of Child Support

In New York, child support is determined on both parents’ combined incomes and the number of children. The applicable percentages in New York are: 17% of income for one child, 25% of income for two children, 29% of income for three children, 31% of income for four children, and 35% income for five or more children. Once an amount of child support is established, i.e., $25,000 per year for two children based on a combined parental income of $100,000, then the court apportions each parent’s responsibility based upon the proportion of their income to the entire amount. For example, if the non-custodial parent earned $60,000 per year and the custodial parent earned $40,000 per year, then the non-custodial parent would be required to pay 60% of $25,000, or $15,000 per year. The child support “cap” is currently at $148,000, which means if combined income is more than this amount, the court has discretion to deviate from the above standard. When combined parental income is in excess of $148,000, the court can apply a strict amount in accordance with the calculation, or if the support would be unjust or inappropriate, the court will deviate from the $148,000 cap. The factors for deviation are located in Domestic Relations Law §240(1)(f). A few of these factors are: the financial resources of the custodial and non-custodial parent; the physical and emotional health of the child and his/her special needs and aptitudes; the standard of living the child would have enjoyed had the marriage or household not been dissolved, etc.

Medical Insurance, Expenses and Childcare

In a divorce case, all requirements for health insurance and any special medical needs are listed in the agreement separately from child support payments. The noncustodial parent won’t receive a deduction in their child support payments by paying for coverage for the child or by paying the cost of consistently required medical costs. Instead, they are “added on” to the basic child support payments. The standard calculation to determine “add ons” such as medical and child care is “pro rata” in proportion to the parties’ income.

Increases & Decreases in Child Support Payments

Either parent has the legal right to petition the court for an increase or decrease in child support payments. This is typically known as an upward or downward modification. There are three elements a parent needs to show: first, a substantial change in circumstances; second, three years have passed since the order was issued; and third, a 15% increase or decrease in either parent’s income since the original order was issued. Moreover, if a parent is getting paid through support collections and there is a change in the cost of living index, the parent will receive notice that he or she is entitled to a cost of living increase. The parent then has the choice to accept or object to the increase. When objections are heard, a de novo review of the parties’ incomes and financial circumstances is triggered. This does not automatically result in an increase in support, even where the payor spouse has increased income. In Murray v. Murray, 164 A.D.3d 1451 (2d Dept. 2018), a case in which Ms. Greenberg represented the payor spouse, the payee spouse actually received a reduction in support when the court looked at the totality of the circumstances, including the fact that the payee spouse’s income doubled and the payor spouse had additional responsibilities.

Failure to Pay Child Support Payments

The custodial parent has the legal right to report the noncustodial parent if they don’t pay child support. This is what is known as an enforcement petition. If a non-custodial parent is behind on payments, there are certain punishments the payor can face. One punishment is when the payor has an income deduction on their salary. This means that on each pay period that the payor gets paid, an amount is withdrawn and paid towards the child support obligation. A second punishment is suspension of the payor’s license. Lastly, the payor can face jail time for lack of payment.

 

For those in need of legal assistance regarding a child custody or other family law case, contact our Garden City family lawyers to determine your available options.

For most, court appearances, whether it be for a conference, a motion, or a trial, present a very novel type of situation. It is not that people do not know what the appearances are, but rather that they do not know what to expect. If you are required to appear in a court conference, you should keep the following in mind:

Do Not Speak Out of Turn

It is easy for emotions to run hot during something as important as a divorce. You might hear somone from the other side say something to which you disagree, and your natural inclination might be to respond. Remember, though, that there are rules in court and that breaking them can hurt your case. You should never speak out of tur in court – it is your attorney’s job to speak for you and your job to give the attorney the information he or she needs to do his or her job. Bide your time until it is your tun to speak, and then let the truth be known in a proper manner.

Do Not Lie

It can be tempting to lie and make yourself look better, especially if you think the other party is doing so. The truth, though, is that lying is one of the worst things you can do in any court-based situation. Hiding income, making up accusations, or purposefully misstating facts is not only immoral, but it is also perjury. Do not give in to the temptation to make your case sound better by lying. Instead, rely on the facts and your attorney to get the job done.

Listen to Your Attorney

Perhaps the most important thing to remember while you are in the midst of a divorce case is that you are working with a professional. If you have contacted Fass & Greenberg, LLP for help, it is because they know what they are doing. The last thing you want to do is a waster all of your time and effort by deciding you need something radically different at the last moment. It is important to keep in contact with your lawyer so he or she knows what your plans are, so that surprises don’t happen in the courtroom.

If you are involved in a contested divorce action, the best thing you can do is listen to your attorneys. The lawyers at Fass & Greenberg can provide you with the guidance you need to make the right moves in court. If you are looking for Garden City divorce attorneys, contact Fass & Greenberg.

Family offenses in the State of New York can consist of a wide range of acts. These types of cases are brought when one family member accuses another family member of committing certain acts against him, her, or a third-person family member. Family members are defined as any one of the following under New York law:

  • People who are related by blood or marriage
  • People who were once married to each other
  • People who are not married but have a common child

 

Types of Prohibited Acts

You will want to speak with a family lawyer from our office if you have been the victim of any of the following acts by a family member:

  • Harassment or intimidation
  • Stalking
  • Criminal mischief
  • Assault
  • Battery
  • Disorderly conduct

 

Orders of Protection

Litigants residing together in the same house must be very careful of their spouse provoking incident in order to obtain exclusive occupancy of the house in a matrimonial action. When a person is charged with a family offense, he or she might also be the subject of a petition for an order of protection both in family court and/or criminal court. Litigants must be very careful before agreeing to an order of protection; even without any immediate arrest and a jail sentence for up to six months.

 

We’ll Advocate for You

The Garden City NY family attorneys at Fass & Greenberg recommend that you not go through emotionally burdensome family offense and order of protection process on your own. Even if an order of protection is entered into on your behalf, it’s only temporary. Another court date will be set for purposes of entering a final order. We can add any number of other terms and conditions to that final order.

You will serve yourself and your family well by contacting the Garden City NY family attorneys at Fass & Greenberg right away after you or a family member become the victim of a family offense. You have every right to have a qualified and respected New York family attorney at your side throughout any court proceedings. Contact our office today to begin building your defense.

Mediation is becoming much more popular in divorce cases. In face, it is even mandated in some states if you have children. If you have the option, though, it is important to stop and consider whether or not the process is right for you. While mediation can have impressive results, it shouldn’t be misconstrued as a miracle method that works for everyone. Instead of walking into a process blindly, you consider whether your particular situation would actually benefit from going through mediation.

The best reason to go through mediation is often that you have a relationship of some sort that you need to preserve. Divorcing your former spouse does mean that you are bringing the marital relationship to an end, but that might not end the connection between the two of you. If you have children or you run a business together, for example, you might be in a situation where encountering one another in the future is a certainty. Mediation will help you to come to solutions that may not be able to salvage that relationship, but that will allow you to interact with some degree of civility going forth.

You may also wish to go through mediation if there are issues between the two of you that cannot easily be solved by other legal processes. There may be sticking points in your marriage that cannot, or at least should not, be solved in a courtroom. Mediation gives you the ability to work with family lawyers in Garden City NY to come to agreements that might better suit everyone involved. These solutions may not be perfect, but they will allow all involved to come to the table and figure out what will present the best result for everyone.

Mediation may not be for everyone, but it might be for you. The attorneys at Fass and Greenberg are certified mediators, and can help you to determine if your situation warrants mediation or if you need to take your next steps in the courtroom. If you need the help of family lawyers in Garden City NY, contact Fass and Greenberg today.

It is a very common misconception that people have that paternity is only established so that child support can be determined. While this is one thing that does occur when paternity has been confirmed, it is also about providing the father with specific rights concerning his child.

Any man that has fathered a child has the right to be a part of that child’s life. Unless that man has signed away his rights, when paternity has been established he has the right to visitation and to be a part of the decision-making process when it comes to the upbringing of the child. This applies to both formerly married and unmarried individuals.

For some people this can become an issue. Personal differences or lifestyles may clash between the two parents and an agreement cannot be easily made between the two concerning the child. When this happens, it is in the best interest of all parties involved to contact our family lawyers in Garden City NY to help the parties come up with the right family plan that is most beneficial to the child.

Fass and Greenberg are family lawyers in Garden City NY that have dedicated their practice to helping families face their many different legal issues. Some of these issues include paternity, child custody, and child support issues. Each attorney at the firm understands how important these issues are to the family and will provide compassionate legal representation to each client. To schedule a consultation, contact our office today.

Separation can be difficult for you and your spouse, as well as any children that may be involved. Fass and Greenberg, New York family attorneys, recommend thinking about the following before you separate:

DON’T move out of the house without having a written agreement in place, whether it be final if possible, or a temporary (pendente lite) agreement, pending a final resolution. Not only are you losing access to and control of your property and assets, you could be accused of abandoning your children, putting you at a disadvantage during any subsequent custody dispute.

DO enter into an agreement that provides for either permanent or pendente lite spousal and child support. Even if you have not decided who will ultimately keep the marital home, or how you want to divide up marital assets, you need to come to an agreement about how any children will be supported during the period of separation, as well as whether a working or higher earning spouse should be making payments to a non-working spouse or spouse who earns less.

DON’T rely on your spouse’s goodwill in continuing to support you or your minor children.

DO enter an agreement that specifies either permanent or temporary custody and visitation for any minor children. Again, even if you are not ready to make final decisions about who will have physical or legal custody – that is, the ability to make decisions regarding the children – you should agree on which parent the children will be with, and when, and specify how decisions about their education, health, and activities will be made during this time.

DON’T count on your spouse putting your or your children’s interests first.

Even if your separation is amicable, having a written agreement in place protects your rights and helps prevent misunderstandings. In order to protect your rights and obtain the best result possible, you should consult with Garden City NY family law attorneys. Contact New York family attorneys Fass and Greenberg to find out how they can help.

What Are My Rights As a Grandparent?

When a family splits up, or a parent dies, the grandparents naturally want assurance they can continue to spend time with the children, too. While this might not be a problem for some couples, with others, there are attending issues that must be dealt with on a legal basis. (more…)

Child Custody Agreements: How an Attorney Can Help

Going through a custody dispute is one of the most stressful experiences imaginable.  Emotions run high when children are involved.  Even if you think you can handle the situation for yourself, it’s critical to obtain effective representation by a skilled experienced attorney. (more…)

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