LEONARD M.WEINER, ESQ, Ph.D.

Divorcesolutions.com

LEONARD M.WEINER, ESQ, Ph.D.

(212) 370-1660

Divorce Solutions

Divorce Solutions

(212) 370-1660

Menu

Daily Question & Answer

Question #94

My husband and I have been married for eight months ago in the State of NY. He wanted a child, and I agreed even though I’m in my 40’s. We have not been able to consummate the marriage. On our honeymoon, I realized he had a problem and asked how long has this been a problem for him, and he said a week and a half before our wedding date. We went to the doctor the next week, and he was given medication, and he still has not able to perform. I believe now that he lied about the week and a half. He is very inexperienced, and I suspected that he was a virgin, never thought that he was inexperienced because he had a problem. We have been separated for seven weeks because he has become very mean and cold, besides lots of other issues. I want to file for an annulment. I feel I qualify under the Domestic Relations Law “Incapable of entering into a married state from physical cause DRL 7(3) pursuant 140(d)” I don’t think he will contest but if he does how can I prove that he had this problem before our marriage. I want this to be as quick and easy as possible for both of us.

DRL 140:
(d) Physical incapacity.
The injured party may maintain an action to annul a marriage on the ground that one of the parties was physically incapable of entering into the marriage state against the party whose incapacity is alleged. Such an action can be maintained only where an incapacity continues and is incurable, and must be commenced before five years have expired since the marriage.

The level of proof necessary for an Annulment is higher than for a divorce. You will need to prove the problem is incurable (tough to prove) and corroborate the claim with some outside testimony, such as a doctor or other person who would know of this problem.

Since you do not have any children and the marriage is of such short duration, perhaps you should consider

A Divorce instead of an Annulment. You could use the “no-fault “ grounds recently enacted and save you and your spouse much

Time and embarrassment. Remember, there are records of Annulments in NY State just as there are records of Divorces.

Leonard M. Weiner, Esq./ Divorce Solutions

Other Questions