The Basics of Annulment in Illinois

Wondering if you can get an annulment? Learn about the grounds for an annulment and how to get one in Illinois.

Overview of Annulment and Void Marriages

Annulment is often misunderstood, because popular culture and religion tend to present inaccurate views  of  what an annulment is in terms of family law. This article focuses on "civil annulments" not "religious annulments," which can only be granted by a church or clergy member.

Annulments and divorces are similar in the sense that they make a determination about marital status. But the vital difference between them is that divorce ends an existing, valid marriage, whereas  annulment  simply declares that what everyone thought was a marriage was never actually a marriage at all. In the eyes of the law, an annulled marriage never really existed.

Illinois is slightly different from other states. Illinois does not have an official court action called "annulment of marriage." However, you can ask a judge for a "judgment of invalidity," which is essentially the same thing. A judgment of invalidity is a final order saying that your marriage was never valid. It's very rarely granted in Illinois.

Grounds for a Judgment of Invalidity

There are various reasons, or "grounds," that must exist before you can ask an Illinois judge for a judgment of invalidity:

  • One of the spouses lacked the capacity to consent to  marriage  because at the time the marriage was solemnized (made official), the spouse was suffering from a mental problem or was under the influence of alcohol or other intoxicating drugs.
  • One spouse agreed to the marriage only because of force, fraud, or duress (coercion). For fraud to be a viable ground for annulment, it has to go to the "essentials of the marriage," meaning it affects the heart of the marriage. For example, if Spouse A lied about personal wealth, that would not be enough of a fraud to allow annulment. But if Spouse A never intended to live with Spouse B and only got married to avoid deportation, that would be a severe enough fraud to enable Spouse B to apply for annulment.
  • One of the spouses lacks the physical capacity to consummate the marriage through sexual intercourse, and hid this fact from the other spouse.
  • The marriage is legally prohibited because it is bigamous (meaning, one spouse is still legally married to another living person, incestuous (the spouses are closely related by blood or adoption), or between two persons of the same sex.
  • One of the spouses was aged 16 or 17 at the time of marriage and failed to obtain the approval of a parent, guardian, or Illinois judge.

How do I get a Judgment Saying my Marriage is Invalid?

First, you must be aware of certain "statutes of limitations" (legal deadlines) affecting when you can ask for a judgment of invalidity:

  • If mental incapacity, intoxication, fraud, duress, or force  are  at issue, then either spouse (or the legal guardian or representative of the spouse who lacked the capacity to consent) must file for a judgment of invalidity no later than 90 days after the petitioner (person  asking for the judgment of invalidity) learned what happened.
  • If physical incapacity is the issue, either spouse may file no later than one year after the petitioner learns about the impotency.
  • If youth is the issue, the underage spouse or the spouse's parent or guardian must file before the underage spouse reaches the legal age of marriage.
  • If bigamy is the issue, either spouse, the Illinois State Attorney, or a child of either party may file for a judgment of invalidity at any time within three years of the first spouse to die.

If you're thinking about asking a judge to declare your marriage void, it's a good idea to talk to a lawyer first. In addition to the custodial and child support issues you'll face if you have kids, there could be very serious financial ramifications for you.

The first step in obtaining a judgment of invalidity is to file a petition with the clerk of the circuit court. The petition should explain the facts and the legal reasons why the judgment of invalidity should be granted, and provide identifying facts about your spouse and any children involved. These materials will be served on your spouse by a deputy sheriff or process server. Your spouse can then write and serve an answer which agrees or disagrees with your position in whole or in part.

Effect of an Invalid Marriage

Some people worry that if their marriage is declared void, the paternity of their children will be called into question. But in Illinois, this isn't an issue. Illinois law specifically says that "children born or adopted of a marriage declared invalid are the lawful children of the parties." There are no legitimacy issues for these children, and they will have the same rights as the children of legal marriages.

That said, it's very important to understand that the Illinois judge who hears your invalidity case has the discretion to decide whether to make the judgment of invalidity "retroactive." If the judgment is retroactive, it means the judgment is effective going all the way back to the marriage date and your marriage was never valid. If it's not retroactive, then it becomes effective as of the date of the court order.

The judge can find that the "interests of justice" mandate making the judgment non-retroactive. But that's rare. Ordinarily, the judgment will be retroactive. This means that the court won't have any authority to decide custody, child support, or to divide the spouses' property because the marriage was never valid. If the judgment is retroactive, you'll need to go through separate proceedings under the Illinois Parentage Act of 1984 to get a judicial decision on custody, child support, and visitation. Neither spouse will be entitled to permanent alimony, and the spouses will be responsible for disentangling their property and debt and restoring themselves to the financial position they were in before they entered the invalid marriage.

After you obtain a judgment of invalidity, you'll be considered a single person and free to marry again.

Resources

Illinois Legal Aid  has a topic page devoted to annulment. Southern Illinois University also has a  helpful PDF packet  which explains Illinois's laws on invalid marriages.

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