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Is a child considered to be illegitimate if the marriage is annulled?

  • December 27, 2016

    Here’s a great article by Todd Spodek, a top rated NYC divorce lawyer.

    A common concern among parents facing a marriage annulment is the status of any children born of the marriage. After all, an annulment legally wipes away the marriage as if it never happened. Both annulment and divorce are legal processes for ending a marriage, although an annulment means the court is saying the marriage shouldn’t have occurred and never legally existed.

    Annulment has many legal effects, but it becomes more complicated when there are children involved. Even when the marriage is annulled, the court system can still deal with issues like child support, spousal support, custody, child visitation, and property division. It’s important to understand that the legitimacy of children is determined by state law. Just as a divorce does not make children of a marriage illegitimate, neither will an annulment.

    Understanding Legitimacy
    Legitimacy is the status of children born to parents who were legally married to each other at the time of the child’s birth or a child conceived before the parents obtained a legal divorce. Legitimate children may have different rights than illegitimate children, depending on state law.

    While illegitimate children historically had no right to inherit from their parents’ estates, many states have since given illegitimate children many of the rights granted to legitimate children. All U.S. states grant illegitimate children the right to inherit from the mother, although paternal inheritance is inconsistent. In most states, an illegitimate child is not automatically considered a legal child of the father, although evidence can be presented for paternity. In many states, paternity must be established while the father is alive to have the right to inherit from the father’s estate. Some states do allow DNA testing for proof of paternity even after the father’s death.

    Legitimacy can also impact private and public benefits for a child. This may include Social Security and other federal, state, and private benefits if there is no proof of paternity.

    Annulment and the Legitimacy of Children
    An annulment typically does not impact the legitimacy of any children born of the union. While annulment effectively means the marriage never occurred, it does not retroactively affect a child’s legitimacy status. At the time of the child’s birth, they were born of a legal marriage under civil law. This means the child was born legitimate and this status will not change when the marriage is annulled.

    Legitimacy and the Catholic Church
    The issue of legitimacy and marriage annulment often comes up within the Catholic community as the Catholic Church requires any previous marriages to be annulled for a future marriage to be valid within the Church. The Catholic Church has made it official policy that children born of marriages later annulled are both civilly and canonically legitimate. This is because the child, at the time of birth, was born of a legal civil marriage and a putative marriage in canon law, which means both parties in the marriage believed in good faith that the marriage was valid. If a marriage is later found to be invalid and annulled, the status of the children is unchanged and they remain legitimate.

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