Q: Is my marriage void due to wife's prior marriage, and is she entitled to assets?

A: New York recognizes a cause of action referred to as an action to declare the nullity of a void marriage. DRL §140. This means the state will treat the couple as having been properly married only for the purpose of a division of property acquired during the marriage. This leaves the asker exposed as to everything bought and invested in over the course of their time together (realty, pensions, and so on) since the state of the defective marriage to the date of filing of the DRL §140 action.

A: You need to go to Court to get your "marriage" declared a nullity.

A: I understand that discovering your wife’s prior marriage has created a lot of confusion and concern, particularly regarding the validity of your marriage and the division of assets. The situation you described has legal implications, and it's important to clarify the status of your marriage and how assets may be divided.

First, regarding the validity of your marriage, under New York law, a marriage is typically considered valid unless there is a legal issue that renders it void. If your wife was still married to someone else at the time of your marriage, this could potentially be an issue of bigamy, which is illegal in New York. Bigamy occurs when a person marries someone while still legally married to another person. However, whether the marriage is void depends on whether the marriage in the Philippines was legally dissolved before your marriage in New York. If your wife was not legally divorced in the Philippines or did not obtain a legal separation, and if no annulment or dissolution process occurred, then your marriage may be considered voidable in New York.

To determine whether your marriage is void or voidable, you would need to consult with an attorney who can help you evaluate whether the prior marriage in the Philippines was properly ended before your New York marriage. If the marriage is deemed void or voidable, it may have legal effects on the marriage and any related matters, such as the division of assets and custody. However, if you and your wife lived together for an extended period, a court might still recognize the marriage for certain purposes, including property division.

Regarding asset division, even if your marriage is void or voidable, New York law typically divides assets in a divorce through the concept of equitable distribution, which means that assets are divided fairly, though not necessarily equally. The court will consider various factors, such as the length of the marriage, each spouse’s contributions, and the needs of both parties. Since your wife has a prior marriage, the court will likely look into the legal implications of that marriage when deciding how assets should be divided.

You mentioned your pension in particular. In New York, pensions and retirement benefits earned during the marriage are generally considered marital property, even if the marriage is later deemed voidable. If your wife contributed to the household or if the pension was accumulated during the time you were married, she could have a claim to a portion of it as part of the divorce settlement. This may depend on how long you were married and whether the court determines that her financial contributions to the marriage warrant her share of the pension.

It’s important to consult with an experienced family law attorney who can review the specific details of your case and guide you through the divorce process, especially regarding the validity of the marriage and asset division.

Disclaimer: This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.