Under most circumstances, when a marriage is broken beyond repair the way to end it is through divorce. However, there are limited cases where divorce is not the appropriate remedy. In some cases, an annulment may actually be the best way to achieve a legal separation. While Illinois does not technically have a process for annulments any more, it does have an extremely similar process that really differs in name only.
Declaration of Invalidity of Marriage
Illinois statute allows a court to enter a judgment declaring the invalidity of a marriage (formerly known as annulment) under certain circumstances. Such a declaration may be granted if one of the following circumstances are met:
- One of the spouses did not have the required mental capacity to consent to the marriage at the time it was solemnized. This can be because of a mental incapacity, because of intoxication (due to drugs or alcohol), or because a person was either forced to get married or was defrauded as to the essentials of the marriage in order to induce the marriage.
- One of spouses is physically incapable of “consummating” the marriage, and the other spouse did not know about this inability at the time of the marriage. Inability to consummate means that one of the spouses is unable to perform sexually.
- One of the spouses was 16 or 17 years old when the couple got married and the 16- or 17-year-old did not have the consent of his or her parents or guardian or judicial approval.
- The marriage is prohibited by some other law.
There are various types of prohibition that could fall under the fourth prong of the invalidity statute. One example would be if one of the parties were already married, since bigamy is prohibited.
Time Limits on Declarations of Invalidity
Unlike a divorce, which can be pursued at any time, there are strict time limits in place that limit when a request for a declaration of invalidity can be filed. If the reason for the declaration is that a party lacked the capacity to consent, the request must be filed no later than 90 days after the person seeking the declaration learned of the incapacity. If the reason is a physical incapacity to consummate, then the request for the declaration must be filed no later than one year after the person requesting it learned of the condition. If the reason for the declaration is that the person is underage and did not have parental consent, the declaration must be requested before the person reaches an age when he or she could marry without parental consent. In the case of prohibited marriage the request for a declaration can be filed at any time not to exceed three years following the death of the first party to die.
Contact Sullivan Taylor & Gumina, P.C.
If you are considering a divorce or annulment, you will need an experienced Illinois family law attorney on your side. Contact the passionate attorneys at Sullivan Taylor & Gumina, P.C. for help determining the best option for you. When you call we can schedule a consultation and discuss your case. Reach out to us today at 630-665-7676.