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How to Get an Annulment in Illinois

Posted on in Divorce

Illinois family lawyerAn annulment, which Illinois calls “declaration of invalidity of marriage,” is another way to end a marriage. Annulment is not the same thing as divorce. When your marriage is declared invalid, legally it is like the marriage never happened. The court will declare your marriage invalid from the date of the marriage. Declaration of invalidity may preclude you from seeking maintenance. It also means there is no marital property to divide between the two parties.

(However, in some cases the court will find “that the interests of justice would be served by making the judgment not retroactive.” In other words, the invalidity will not date back to the date of the marriage.)

Grounds for a Declaration of Invalidity of Marriage

There are four circumstances in which the court will declare a marriage invalid:

  1. Either or both parties lacked the capacity to consent to the marriage when the ceremony took place. For example, if the party was under the influence of drugs or alcohol, that party can argue lack of consent. This situation also includes parties who entered the marriage because of force, duress or fraud.
  2. A party lacked the physical capacity to consummate the marriage when the ceremony took place and the other party didn’t know about the incapacity.
  3. Either or both parties were 16- or 17-years-old and did not have parental consent or court approval.
  4. The marriage is prohibited (like if one or both parties was already married to someone else).

There are specific timeframes for seeking a declaration of invalidity, and only certain parties may file the petition. An experienced attorney can guide you through this process.

The Putative Spouse and Children

What if you did not know your marriage was invalid?

Under Illinois law, a person who has lived with another individual, and who has gone through a marriage ceremony and believed that they were married, is considered a putative spouse.

This is important because a putative spouse - someone who honestly believed he or she was legally married - has the same rights as a legal spouse, including the right to maintenance and certain marital property. However, this can become complicated if there is a legal spouse or other putative spouses in the picture.

Note that children born or adopted during an invalid marriage are considered the lawful children of the parties.

Contact Us Today for Assistance

The dedicated Naperville family law attorney at the Roscich & Martel Law Firm, LLC, are prepared to assist you in petitioning for a declaration of invalidity of marriage. Contact us today for a free consultation to determine whether your marriage qualifies for the annulment process.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+IV&ActID=2086&ChapterID=59&SeqStart=3800000&SeqEnd=5300000

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+III&ActID=2086&ChapterID=59&SeqStart=3100000&SeqEnd=3800000

 

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