22 Aug 16

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

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In deciding the legitimacy of your offspring, it helps to define what you mean. Often times we throw around different legal terms without defining them, and this causes untold headache for people in family court cases. For the purposes of this article, we will make a difference between legal marriage (that certified by governing authority) and de facto marriage (any permanent sexual relationship between two members of the opposite sex). Legitimacy means that the government grants you tax deductions for having children under a government sanctioned marriage license.

An annulled marriage is one that the state government does not consider to have been legal or valid. This could be because the witnesses were not present, or it was performed by a none valid representative. The consequences may be a forfeiture of government tax benefits for the couple and their offspring. However, both parties can still be considered to have entered into de facto marriage if they have committed to each other and have been living together. In the legal tradition, the process of officiating marriages with a government license is relatively new. It dawned once the government got so large that certain demographics wanted it to cater to their particular interest group.

What should an individual do if they find themselves in this situation? Make sure that you know the difference between the official recognition of your marriage, and de facto personal acceptance of your marriage. The government only officiates legal marriages because they want to have financial influence over their citizen’s lives. Thomas Jefferson was once purported to have said, “A government big enough to give you everything you want, is strong enough to take everything you have.” The emotional validity of the marriage between you and your partner is not impacted by the government’s opinion about it. The same goes for your children. In contesting for the legal benefits that are given to officially approved marriages, recall that most marriages were common law until quite recently.

It is only of late that governments have taken to extending their fingers into the private pie of civil unions. This is a legitimate piece of historical evidence you can use to remind the court of the impropriety of the state mandating which of your children is valid or not in a taxation sense. You can also cite the 10th Amendment of the United States Constitution in your court case, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If the government does not have official reason to decide the legal status of your children, then it is likely that the power to decide their legitimacy rests with you and your spouse.

Need more information? Speak to our NY matrimonial lawyers.

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