Most people understand that a divorce legally ends and validly recognized marriage. Whatever a couple’s reasons may be for ending the marriage, relatively few do so in the belief that the marriage was never initially valid. Those relative few, however, may have an alternative to divorce if they have reason to believe that their marriage was invalid. A declaration of invalidity of marriage, formerly called annulment, may help a couple dissolve their invalid marriage and move forward with less stress and expense than a traditional divorce.
Grounds for Annulment
There are several situations under Illinois law in which the court may determine the invalidity of a marriage. An annulment may be granted if:
- At least one party lacked capacity to consent at the time of marriage due to illness, drugs or alcohol, or mental incapacity;
- A party gave consent was given under duress or fraudulent circumstances related to the marriage;
- One party does not have the ability to physically consummate the marriage through sexual intercourse, and the other partner was not aware of such inability.
- A party was under 18 years old and did not have appropriate parental or judicial consent to marry; or
- The marriage was otherwise prohibited, including on the grounds of bigamy or blood-relatives seeking to marry.
Timeframe for Petitioning
Depending on the grounds cited in the request to have a marriage declared invalid, the petition must be filed with the court within a certain timeframe. Consent-related concerns must be filed within 90 days, while the inability to consummate the marriage must be addressed within one year of becoming aware. An annulment based on the grounds of an underage party must be requested by either the underage party or the party’s parent before the party turns 18 years old. A prohibited marriage may be declared invalid for up to three years following the death of the first party to die, and the petition may be filed by either party, the legal spouse in the case of bigamy, the State’s Attorney, or the child of ether party.
Declaration of Invalidity of Marriage
If a marriage is found to be invalid based on any of the statutory criteria, the court will enter a declaration of invalidity of marriage. The declaration is generally retroactive to the date of the marriage, unless the court finds “that the interests of justice would be served by making the judgment not retroactive.” The law also provides that only non-retroactive annulments are subject to the guidelines for property division and support between spouses.
Children of an Invalid Marriage
Any child who is conceived by or born to parents during a marriage that is later declared invalid is considered to be the lawful child of the parties. Further establishment of legal paternity is not required. Child support and child custody arrangements will still need to be made, however, as the needs of the child must continue to be met regardless of the disposition of the marriage.
If you have been recently married and have concerns about the validity of your marriage, an experienced Orland Park family lawyer can help you better understand your situation. Contact our office today to schedule a free consultation. We will review your case and work with you in clarifying your options under the law.