Action to Annul Marriage on Ground of Incurable Mental Illness for Five Years;  Procedure;  Support

An annulment is a way to end a marriage. It is not the same as a divorce. With a divorce a marriage is terminated. An annulment goes a step further. With an annulment the marriage is void and invalidated. In other words, the legal result is that the marriage never happened. Not just any couple can get an annulment. There must be grounds for an annulment as specified in section 7 of New York’s Domestic Relations Law. One of the five legal grounds for an annulment is that one of the spouses “has been incurably mentally ill for a period of five years or more.” If you do get an annulment based on the mental illness of your spouse, you still may be responsible for supporting him or her. If you are considering an annulment, contact an experienced New York divorce lawyer who understands the legalities related to voiding a marriage under the provisions related to incurable mentally illness.

When it comes to a divorce, the process can be contested or uncontested. With an uncontested divorce, no divorce litigation is necessary because the parties have agreed on the terms of the divorce settlement. However, with an annulment the grounds must be proven in court. This means evidence must submitted. In the case of an annulment on the grounds of mental illness, there must be medical testimony. The law requires that before a court can annul a marriage based on mental illness, the allegedly mentally ill spouse must be examined by three physicians appointed by the court. The three physicians must agree that the person is incurably mentally ill.

Even though an annulment would result in the marriage being invalidated, the former spouse may still be required to provide assistance and support to the former spouse who is mentally ill. According to NY Dom Rel Law § 141(1), in the annulment decree, the court may order the other spouse to provide for the support, care, and maintenance of the mentally ill spouse out of the other spouse’s assets. The duration of the support might be for the lifetime of the mentally ill spouse.

1. Action for judgment declaring nullity of void marriages or annulling voidable marriage: New York Domestic Relations Law, section 140
2. Dismissal of complaint in action by next friend to annul a marriage: New York Domestic Relations Law, section 142
3. Jury trial: New York Domestic Relations Law, section 143
4. Proof required: New York Domestic Relations Law, section 144
5. Judgment, how far conclusive: New York Domestic Relations Law, section 146

1. If the marriage be annulled on the ground of the mental illness of a spouse, the court may include in the judgment an order providing for his or her suitable support, care and maintenance during life from the property or income of the other spouse. The court shall specify the amount of such support, care and maintenance and, before rendering judgment, may exact security for such support, care and maintenance during life and shall order the filing and recording of the instrument creating such security in the office of the clerk of the county in which the action is brought and the filing of two certified copies thereof with the office of mental health at its Albany office. The provisions of the judgment relating to support, care and maintenance of the mentally ill spouse during his or her life and to security therefor may be modified or amended at any time by the court upon due notice to the other party and other interested parties as the court may direct and in proper case the value of the suitable support, care and maintenance to such spouse during the balance of his or her life based upon appropriate mortality tables may be adjudged and determined by the court in which the estate of a deceased spouse is being administered and the same may be recovered on behalf of the mentally ill spouse from the estate of the deceased spouse. If the mentally ill spouse is maintained in an institution or otherwise under the jurisdiction of the office of mental health, the suitable support, care and maintenance as required in the judgment, unless otherwise directed by the court, shall be the charge established by the commissioner of mental health and such charge may be recovered in the manner provided by law. Such amount shall continue to be so required for the support of the mentally ill spouse in the event of his or her removal from the custody of the office of mental health unless thereafter otherwise directed by the court. Any security exacted for the suitable support, care and maintenance during life of the mentally ill spouse shall be available to that spouse or any person on his or her behalf or to any person or agency providing support, care and maintenance for such spouse in the event that the required payments for such support, care and maintenance have not been made and upon application to the court the other spouse shall be ordered and directed to provide additional or further security.

2. Judgment annulling a marriage on such ground shall not be rendered until, in addition to any other proofs in the case, a thorough examination of the alleged mentally ill party shall have been made by three physicians who are recognized authorities on mental disease, to be appointed by the court, all of whom shall have agreed that such party is incurably mentally ill and shall have so reported to the court. In such action, the testimony of a physician attached to a state hospital in the department of mental hygiene as to information which he acquired in attending a patient in a professional capacity at such hospital, shall be taken before a referee appointed by a judge of the court in which such action is pending if the court in its discretion shall determine that the distance such physician must travel to attend the trial would be a great inconvenience to him or the hospital, or that other sufficient reason exists for the appointment of a referee for such purpose; provided, however, that any judge of such court at any time in his discretion, notwithstanding such deposition, may order that a subpoena issue for the attendance and examination of such physician upon the trial of the action. In such case a copy of the order shall be served together with the subpoena.

3. Except as provided in paragraph five, when the person alleged to be incurably mentally ill is confined in a state hospital for the mentally ill of this state, one, and one only, of the physicians so appointed shall be a member of the resident medical staff of such hospital designated by the director thereof. If the alleged incurably mentally ill person is not confined in a state hospital for the mentally ill of this state, one of the examining physicians named in pursuance of this section shall be the director of a state hospital for the mentally ill if the alleged mentally ill person is within this state, or the superintendent or comparable officer of a state hospital for the mentally ill of the state or country where the alleged mentally ill person is present if the alleged mentally ill person is outside of this state. The report of such superintendent or comparable officer of a state hospital for the mentally ill of such other state or country shall not be received in evidence or considered by the court unless he shall be a well educated physician with at least five years of training and experience in the care and treatment of persons suffering from mental disorders.

4. When the plaintiff has been permitted to bring such action or prosecute the same as a poor person and the alleged incurably mentally ill defendant is present within this state, the court shall appoint three physicians who are examining physicians, as defined by section 1.05 of the mental hygiene law, in the employment of the department of mental hygiene. If the alleged mentally ill person be outside of this state, the court may, upon proof thereof, appoint three examining physicians who are qualified under the laws or regulations of the foreign state or country where the alleged mentally ill person is present and who have qualifications comparable to those specified in section 1.05 of the mental hygiene law of the state, provided, however, that one of such examining physician shall be the superintendent or comparable officer of a state hospital for the mentally ill of such foreign state or country with qualifications as specified in paragraph four. Such examiners shall make the examination of the alleged mentally ill party present in this state and file with the court a verified report of their findings and conclusions without costs to such plaintiff when the plaintiff is a poor person. Examination of an alleged mentally ill party present outside of this state shall be made at the expense of the plaintiff. Such report shall be received in evidence upon the trial of the action without the personal appearance or testimony of such examiners. If the court shall deem it necessary that the testimony of any such examiners be taken, the court may order the taking of such testimony by deposition only. The examiners so appointed by the court may be members of the resident medical staff of any state hospital, whether or not the alleged mentally ill person is being confined there.

Learning that your spouse is mentally ill is difficult and taking the step to end the marriage because of the mental illness is painful. If you are considering seeking an annulment or a divorce, you should immediately discuss your concerns with an experienced New York divorce lawyer. With over 20 years of experience representing clients throughout New York with complicated family-related legal matters, the attorneys at the Law Offices of Stephen Bilkis & Associates can help. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, Westchester County, Suffolk County, and Nassau County.