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Terminating a marriage via dissolution (also called divorce) is no easy feat – indeed, getting a divorce requires going through a legal process that can be expensive, confusing, and emotional.

In some cases, however, a couple need not get a divorce in order to end a marriage. Sometimes, a declaration of invalidity of marriage may be issued. This is also called an annulment.

When Can a Person File for an Annulment?

An annulment of a marriage is different from a divorce, in that an annulment treats the marriage as though it never happened. However, a person cannot annul a marriage simply because they feel like it; instead, a declaration of invalidity will only be issued when:

  • One party was not capable of consenting to the marriage at the time it took place (i.e. being intoxicated) or was pressured into the marriage by force or duress;
  • One party lacks the physical capacity to consummate the marriage and at the time that the marriage took place, the other party did not know about this lack of capacity;
  • One of the parties was under the legal age of consent at the time of the marriage and did not have a parent’s permission to enter the marriage; or
  • The marriage is prohibited under state law (i.e. marriages between siblings or certain other blood relatives).

Unless one of the above factors is satisfied, you cannot file for an annulment of your marriage, as found in 750 ILCS 5/Pt. III – Declaration of Invalidity of Marriage.

Should I File for an Annulment or a Divorce?

If your marriage does meet one of the criteria listed above for an annulment, you may be wondering whether or not filing for an annulment or a divorce is the better choice. The answer depends on your circumstances and personal preferences. You may want to file for a divorce if:

  • More than 90 days have passed – in most cases, the time limit for filing for annulment is 90 days from the date of marriage, or from the time you learn about the problem (this time limit is extended for certain grounds for annulment);
  • You want a court order regarding property division, child support, child custody, or spousal maintenance; or
  • Proving one of the above criteria listed above is too difficult, and you and your spouse both agree to the divorce based on irreconcilable differences (you will not have to prove fault if this is your grounds for divorce).

An annulment, on the other hand, may be ideal if you want to eliminate a record of the marriage occurring, providing you with the ability to see that the marriage never happened. An annulment may also be beneficial if you want to bypass any of the complications of a divorce listed above, such as entering a property division agreement.

Our Law Firm Can Help

At the law offices of Fay, Farrow & Associates, P.C., our divorce and annulment attorneys serving Wheaton, Downers Grove, Lombard, Lisle, Aurora, and Naperville are here to help you when you have questions about annulment or divorce. Please contact our legal team today to schedule an initial consultation and learn more.