Flaxman v. Flaxman

263 A.2d 816, 109 N.J. Super. 500, 1970 N.J. Super. LEXIS 580

Opinion

Consodine, J. C. C.

(temporarily assigned). What effect does the remarriage of plaintiff have upon her right to alimony from her first husband when that remarriage was voidable and subsequently annulled?

Case law holds that where the second marriage was Amid, the judgment of annulment revived the alimony provision. Minder v. Minder, 83 N. J. Super. 159 (Ch. Div. 1964).

However, it cannot be disputed that a judgment of annulment of a Amidable marriage in this State renders the marriage null and void from the beginning. Steerman v. Snow, 94 N. J. Eq. 9 (Ch. 1922); Wigder v. Wigder, 14 N. J. Misc. 880 (Ch. 1936).

That being our law it logically follows that there is no difference in effect between a judgment of annulment of a Amid marriage and one of a voidable marriage. In either ease, as has been well said by Chief Judge (later Justice) Cardozo, the marriage “is effaced as if it had never been.” Sleicher v. Sleicher, 251 N. Y. 366, 369, 167 N. E. 501, 502 (Ct. App. 1929). See also 1 Herr, Marriage, Divorce and Separation, § 61, at 90.

Not iiiA-olved in this matter at this time is any question of revision or alteration of the agreed alimony allotvance. N. J. S. A. 2A:34-23. However, it should be noted that defendant’s income is now substantially more than it was at the time of the judgment of divorce and that there is no apparent change of circumstance other than remarriage of defendant.

This opinion is in conflict with that in Sharpe v. Sharpe, 109 N. J. Super. 410 (Ch. Div. 1970).