Annulments in Illinois
In 2011, the most recent year for which statistics are available, in Illinois, there were 73,341 marriages and 33,389 marriages ended in divorce or by annulment. In Illinois, an “annulment” is referred to as a “declaration of invalidity.” The effect of obtaining an annulment or a declaration of invalidity, is to void the marriage. In the eyes of the law, it is treated as though the marriage never happened. However, that does not mean that the children born of that union are considered illegitimate.
The first step in having a marriage declared invalid is to file a petition in the Illinois court in the county where one of the parties is living. There is no specific form provided by the court with blanks for a party to complete, so the petition will have to be prepared from scratch.
As with all legal matters, there are specific facts that must be placed in the petition and specific time limits that apply when filing and presenting the petition to the court or the request for an annulment or declaration of invalidity may be denied.
It is generally a good idea to have a family law attorney help. Anyone may retain a lawyer to prepare the paperwork only. This is called retaining an attorney for “unbundled legal services” or on a “limited scope” basis, and it is usually less expensive to do so because the attorney’s role in the case is limited. However, many people choose the more traditional route of retaining a lawyer to perform all services necessary to obtain a declaration of invalidity, including representing them in court.
Grounds for Obtaining a Declaration of Invalidity
In Illinois, there are four specific grounds provided by the Illinois Marriage and Dissolution of Marriage Act for issuing a declaration of invalidity, as follows:
- Lack of Capacity. Only one party need lack capacity to enter into the marriage at the time of the wedding or ceremony. Incapacity may be due to a mental incapacity, such as intellectual disability or being under the influence of drugs or alcohol. Lack of capacity may also be due to one party being forced into the marriage through fraud or duress. A petition filed under this particular set of grounds must be filed within 90 days of the marriage or the petition will be dismissed.
- The Marriage was Never Consummated. This ground requires two factors: 1.). One party must have been physically unable to consummate the marriage through intercourse, and 2.) The other party was aware of the physical limitation at the time the marriage was entered into. To be successful, a petition using this ground must be filed within one year of the date of the marriage.
- Lack of Parental Consent. One or both of the parties were under the age of 18 at the time of the marriage and did not have the permission of a parent or guardian to enter into the marriage. Parents and guardians may file the petition to have the marriage declared invalid as long as they do so before one of the parties to the marriage turns 18 years of age.
- The Marriage was Otherwise Prohibited. Prohibited marriages in Illinois included marriages to a party who is already married, referred to as bigamy, or marriages between related persons like first cousins under the age of 50 or brothers and sisters, for example. A petition for a declaration of invalidity on this ground filed at any time after the marriage occurred may be granted.
Children of Annulled Marriages
Illinois law specifically states that the children born to or adopted of a marriage which has been declared invalid are still the lawful children of the parties. In other words, the children of an annulled marriage have the same rights as children born of a legal marriage. Custody, visitation and child support will be decided based on the laws set forth in the Illinois Marriage and Dissolution of Marriage Act. Intestacy and descent will be decided upon the laws set forth in the Illinois Probate Act. The fact that the parents of a child had their marriage declared invalid or annulled is irrelevant.
In situations where there are children, or a need for spousal support, a court may make the declaration of invalidity of a marriage effective as of the date of the entry of the order after the filing of a petition, as opposed to making it effective retroactively to the date of the marriage. This rarely occurs, but may happen particularly in instances of long term marriages where a division of property is required, or spousal maintenance, allocation of parental responsibilities, and child support are necessary to do justice to the parties or their children. In these cases, the court will establish a certain date upon which the marriage is declared invalid.
Those persons needing to annul or invalidate their marriage turn to the Illinois family law firm Kathryn L. Harry & Associates P.C. Call (877) 889-4515 to schedule consult with experienced attorneys who may answer your questions and help you plan your next course of action. With offices in Oak Brook and Naperville and they serve all of Chicagoland, including the counties of Cook, DuPage, Kane, and Will.