When a marriage runs its course, most spouses have it dissolved through divorce. This legal process ends the connection between the spouses and gives them a place to work out relevant issues like the division of assets, parenting time, parenting responsibilities and support. However, there are rare circumstances in which the best thing for an individual to do is ask for an annulment, which Illinois calls a declaration of invalidity.
The Difference Between Divorce and Annulment
A divorce recognizes a marriage existed for a period of time and has now ended. The marriage was valid while it occurred. An annulment, or declaration of invalidity, finds that a marriage was never valid in the eyes of the law. This makes it as if a legal marriage never took place at all.
Reasons for an Annulment in Illinois
Under Illinois law 750 ILCS 5/301, a declaration of invalidity for a marriage is only possible in a few specific situations:
- Lack of capacity: One of the individuals did not have the capacity to consent due to a mental disability, or the influence of drugs or alcohol.
- Fraud: One of the individuals entered into the marriage based on a fraud, force, or under duress.
- Lack of consent: One of the individuals was younger than 18 years old and did not have parental, guardian, or judicial approval.
- Inability to consummate the marriage: One of the individuals was incapable of sexual intercourse and the other person did not know.
- Illegality: The marriage was prohibited by law.
Deadlines for Requesting an Annulment
The rules for requesting an annulment depend on the reason for it. Based on 750 ILCS 5/302, if an individual wants an annulment based on their lack of capacity or fraud, then they or their legal representative must file a petition for an annulment with the local county court within 90 days of the beginning of the marriage or since realizing there was a problem. If that person remained in the marriage for months or years despite the circumstances under which they entered into it, then they will need to obtain a divorce to end it.
If an individual wants an annulment because they discovered their husband or wife is not able to consummate the marriage, then they have up to one year to file. After more than one year into the marriage without intercourse, they will need to seek a divorce.
If an individual is still under 18 years old and married without permission, that individual, or their parent or guardian, can file a petition in court. Once the individual reaches 18 though, he or she will have to ask for a divorce.
Illinois does not provide a deadline for asking for an annulment if a marriage was prohibited by law.
Obtaining an Annulment
If you believe you have the right to an annulment, contact an experienced DuPage County family lawyer today. Illinois does not provide standardized forms for seeking an annulment. Instead, your attorney will draft a unique petition, stating the reason for your request. You must file this petition in the proper county court and serve your spouse with a copy of the petition and a summons to court.
When you and your spouse attend the hearing, you will need proof of the reason for an annulment. This may include providing documentation, testifying in court, asking witnesses to answer questions, and more. If you cannot prove that one of the relevant reasons for an annulment exists, then your request will be denied. In this case, you can work with your attorney to move forward with a divorce. If the judge grants your request, you will receive a declaration of invalidity signed by the judge.
Contact a DuPage County Divorce Lawyer Today
If you want to end your marriage and need to learn more about Illinois divorce or annulment, contact Fay, Farrow & Associates, P.C. to schedule a free initial consultation.