The conclusion of a marriage is a difficult time for all parties involved. When making the decision to end a marriage, the options are annulment or divorce. In order to determine the best and/or only solution for you, it is important to understand the differences between an annulment and a divorce. Annulments are a bit more complicated and there are stricter time limits than a divorce.
The biggest difference between annulment and divorce is that while both are a legal dissolution of marriage, a legal annulment invalidates a marriage, whereas a divorce still recognizes that there was a valid marriage but it has come to an end based on adequate grounds.
If you are considering a divorce or annulment to dissolve your marriage, contact our family law attorneys at Ktenas Law to help guide you through this legal process.
When Can You Annul a Marriage in Illinois?
The annulment process is more difficult than a divorce process. Certain criteria must be met and proved by the petitioning party for a judge to consider invalidating a marriage. In the state of Illinois, a judge may grant a legal annulment if the marriage was entered upon the following circumstances and the request for annulment was filed within the statute of limitations:
Either party was not of sound mind when the marriage was solemnized. This could either be because the mental incapacities or the marriage was entered while either party was under the influence of drugs or alcohol. The parties have up to 90 days after learning of the incapacitating condition to petition the courts for annulment.
The marriage was entered because one of the parties was under force or duress. In the case of forced marriage, the parties have up to 90 days to petition the courts for annulment.
One party entered the marriage based on the lies or misrepresentation of the other spouse. To petition for annulment based on fraud, must affect the "essentials of marriage". For example, one party enters the marriage with no intentions of remaining married to the other party but only to become a legal citizen and avoid deportation.
The petitioner of the annulment has up to 90 days after learning of the false pretense in which the marriage was entered to petition for annulment.
One or both parties entered the marriage while underage and without parental consent, guardian consent, or judicial approval. An underage marriage can be annulled by a parent or guardian until the underage spouse reaches the legal age of consent to marry. In the state of Illinois, the legal consent for marriage is 18.
A marriage cannot be made official with sexual intercourse and one party did not know of the inability before entering the marriage. Either party has up to a year after learning of this condition to present the annulment petition.
Bigamous marriages, meaning that either party was legally married to another person upon the time of marriage are prohibited. If filing a petition based on an incestuous marriage, the degree of the relationship between the two parties is called into question (father/daughter).
An annulment petition can be sought by either spouse or in the case of a bigamous marriage, the legal spouse, a child of either party or the State, at any time not to exceed 3 years after the death of the first spouse.
Main Differences Between an Annulment and a Divorce
While both an annulment and a divorce dissolve a marriage, there is a conceptual difference between the two. A divorce still acknowledges that the marriage was once legal, where an annulment will legally invalidate the marriage as if it never happened.
Because of the separation of church and state, civil annulments (or court-granted annulments) will not always be acknowledged by a church. In cases of religious annulments, some couples may also have to have their annulment conceded through a religious body.
Due to the strict annulment requirements, divorce is sometimes the only option for the dissolution of marriage. When entering a divorce proceeding, there are two types of divorce, no-fault divorce and fault divorce.
No-fault divorce means that neither party accepts blame for the conclusion of the marriage, so therefore neither spouse is required to prove the fault of the other spouse. Oftentimes, spouses will use irreconcilable differences as the grounds to file for a no-fault divorce.
No-fault divorces usually require a legal separation for a certain period of time. In the state of Illinois, the parties must be legally separated for 24 months or more.
Fault divorce means that one spouse files for divorce and places blame on the other spouse for the end of their marriage. Common ground for a fault divorce includes but is not limited to adultery, abandonment, physical or emotional abuse, etc. It is important to remember that the spouse filing the petition for fault divorce, will need to be able to prove the validity of the grounds for divorce.
Can You Get a Marriage Annulled if You Have Children?
The short answer to this question is yes. In the state of Illinois, the legitimacy of the children will not be questioned due to the annulment, whether it is a civil annulment or a religious annulment.
The more complicated answer is the legitimacy of the children will not be questioned but depends on whether the judge decides to make the invalidity of the marriage retroactive or non-retroactive. If the judgment is retroactive, the judgment goes back to the date the marriage was entered and the marriage was never valid, giving the courts no authority to dictate custody, child support, or how the property is divided between spouses.
However, a non-retroactive annulment would make the marriage invalid on the judgment date. Judges do not commonly make the judgments non-retroactive.
If the invalidation of the marriage is retroactive, separate proceedings will need to take place to determine child custody, visitation, and child support.
Benefits of a Marriage Annulment
An annulment is typically harder to obtain as there are strict restrictions and time limits to petition the courts for an annulment. An annulment legally invalidates the marriage, acting as if the marriage never existed. Generally, this ruling will alleviate the financial burdens of the two parties.
Invalidating the marriage leaves the two individuals in the same financial position they were in before the wedding. Therefore there are typically no property divides, custody divides, or court order payments between the spouses. A civil annulment will also consider you to be single and free to marry again.
How to File a Marriage Annulment in Illinois
In the state of Illinois, an annulment is often referred to as a declaration of invalidity of marriage. Annulments are rare in Illinois because of the strict grounds for annulment and the strict time frame in which you must file your petition. Before filing a petition "pro se" or representation of yourself, it may be a good idea to talk with a family law attorney to decide whether annulment or divorce is best for your case.
In order to file for marriage annulment, you will need to first file a petition with the circuit court in the county in which you and your spouse reside. The petition will require the legal validation of why you are filing the request as well as information regarding your marriage. The other spouse will be notified of this filing. A family court judge will review the case and determine whether or not your marriage meets the requirements for declaration of invalidity or annulment.