Understanding When Annulment is an Option to End Your Marriage

 Posted on June 10, 2014 in Kane County divorce attorney

annulment, bigamous marriage, declaration of invalidity, end marriage, Kane County divorce attorney, marriage declaration of invalidity, putative spouseLike a divorce, an annulment ends a marriage. But unlike a divorce, an annulment treats the marriage like it never happened, which may be important to you for religious or other personal reasons. There is a short time frame in which to secure an annulment, so if you are considering this option then you need to act quickly.

In Illinois, there are four circumstances in which a court will enter a judgment declaring the invalidity of a marriage (colloquially referred to as an annulment). Note that a different timeframe attaches to each circumstance.

  1. A party lacked capacity to consent to the marriage when the marriage began. The inability to consent could stem from mental incapacity, infirmity or the influence of drugs or alcohol. Incapacity also exists if a party was induced to enter into the marriage by fraud, force or duress. Either party, or the legal representative of the party who lacked capacity, may petition for a declaration of invalidity. The petition must be filed within 90 days of the petitioner knowing about the described condition.
  2. A party lacks the physical capacity to consummate the marriage, and when the marriage began the other party did not know of this incapacity. Either party may petition for a declaration of invalidity. The petition must be filed within one year of the petitioner learning of the physical incapacity.
  3. A party was 16 or 17 years old and did not have consent from a parent/guardian or judicial approval. The underage party or his/her parent or guardian may petition for a declaration of invalidity. The petition must be filed before the party’s 18th birthday.
  4. The marriage is prohibited. For example, you cannot marry someone if you are legally married to someone else. This is called a bigamous marriage, and it is illegal. In that case either party may petition for a declaration of invalidity, as can the legal spouse, the State’s Attorney, or a child of either party. The petition may be filed at any time, even post-mortem, although it must be filed within three years following the death of the first party who dies.

Children of an Invalid Marriage and the Putative Spouse

Special concerns arise if the marriage produced children, either biological or adopted. If a court later declares that the marriage is invalid, the children are still considered lawful children of both parties (likewise, if a child’s parents marry after his/her birth then he/she is a lawful child of both parties).

Another special consideration involves the parties’ marital rights before and after the marriage is declared invalid. The law considers any person who has cohabited with another person, and who believes in good faith that they are married, “a putative spouse.” The law confers that status and its attendant right to be treated as a legal spouse until the person learns that the marriage is invalid. That right might include equitable division of marital assets and maintenance payments (alimony) post-declaration of invalidity.

If you do not meet the criteria for an annulment but want to end your marriage, divorce is still an option. Contact our experienced Kane County divorce attorneys who can help you pursue either avenue. Call us today for a consultation. We can assist those in the St. Charles area.

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