When it comes to the dissolution of a marriage (or “divorce”), there are a couple of alternatives to the standard divorce route. One infrequently used alternative is a declaration of invalidity of the marriage – more commonly known as “annulment.” 

There are certain advantages to obtaining an annulment instead of a divorce, but relatively few petitions for annulments are filed in Illinois each year. The Illinois statute on annulment is not as robust as the divorce statute. This means it’s harder to qualify for an annulment than a divorce. But you should ask your legal practitioner to determine if an annulment is possible for you before they file for divorce. 

The traditional common law grounds for annulment were based on lack of capacity to consent to the marriage (mental incapacity, fraud, duress, and sham marriages), physical incapacity, lack of age, and marriages prohibited by law.  

The four (4) circumstances listed in Section 301 of the Declaration of Invalidity of Marriage include:  

  1. Lack of consent – A party is persuaded to enter into a marriage by force, duress, or fraud involving the essentials of marriage. It can also apply when one party is under the influence of alcohol, drugs, or other incapacitating substances. Finally, mental incapacity or infirmity also prohibits the ability to provide consent and may qualify a marriage for annulment. 
  2. Physical incapacity –  A party lacks the physical capacity to consummate the marriage by sexual intercourse. This applies when the other party did not know of the incapacity at the time of the marriage.
  3. Lack of age – A party was aged 16 or 17 years and did not have parental or guardian consent or judicial approval.
  4. Prohibited by law – These grounds must be pleaded and proven. Defenses to most of the grounds can be asserted because the grounds allege that at least one party is at fault. 

Time Constraints for Annulments: 

Except for prohibited marriages, if you wait too long to file for an annulment, the marriage will be considered valid and the only remedy is divorce. The action must be filed within the following time frames:

  1. Lack of consent – 90 days after the petitioner obtained knowledge of the described condition. 
  2. Physical incapacity – The action must be filed no later than one year after the petitioner became aware of the described condition. 
  3. Lack of age – A parent or guardian must file the action before the underaged party reaches the age at which he/she could have married without needing to meet the omitted requirement.
  4. Prohibited by law – The action may be filed at any time but cannot exceed 3 years following the death of the first party to die. Either party may initiate the action. The legal spouse in the case of a bigamous marriage, the State’s Attorney, or a child of either party may also initiate the action. 

Annulment Conditions:

Except for prohibited marriages, a party cannot seek an annulment after the death of either party. This is also true for dissolutions of marriage. 

The grounds for annulment are generally difficult to prove. Kim Kardashian and Britney Spears have made the process look easy in the State of California. But this does not reflect most peoples’ reality. 

Even though marriages declared invalid under the Declaration of Invalidity of Marriage statute are treated as void from the date of the marriage, a court may still issue permanent orders regarding: 

  • Maintenance (formerly known as alimony)
  • Division of property
  • Allocation of parental responsibilities
  • Parenting time (formerly known as “custody”)
  • Child support

For purposes of support, custody, inheritance, and name, children born of annulled marriages are legitimate.

Because there are time limits on filing for an annulment, an invalid marriage is likely to be short-lived. For this reason, maintenance (formerly known as “alimony”) is rarely granted in an annulled marriage. It is more likely that there will be marital property that must now be divided.

Punitive Spouses 

The statute has one last important section to mention. Illinois’s putative spouse doctrine. This applies to parties who: 

(1) performed the marriage ceremony; 

(2) lived with one another as spouses; but 

(3) they were not legally married, and 

(4) one party had a good faith belief that they were married to that person. 

Once the putative spouse finds out they are not legally married, their status as putative spouse terminates and they can no longer acquire additional rights.  

An example of a putative spouse is when a party finds out that their spouse never actually got a divorce from their prior spouse. Sometimes parties avoid conflict and move on without actually filing for divorce and separating out assets. It can be quite a surprise when the new spouse finds out that they were never legally married. This usually happens after the original spouse finally files for divorce or after their spouse dies and the original spouse attempts to claim retirement benefits. 

Do You Qualify for an Annulment? 

Termination of a marriage, whether by divorce or annulment, can be very traumatic for everyone involved. An annulment might seem like a good option, but they require a particular set of circumstances in order to qualify. 

If you think you may have a case for an annulment or you may be a putative spouse, the attorneys at Greenberg & Sinkovits are ready to take your call. Call us today at (312) 905-3013 for a free consultation.