Can I File for an Annulment Instead of a Divorce?

Can I File for an Annulment Instead of a Divorce?

By: Gordon & Perlut, LLC

When you are struggling with your marriage, you may be thinking about how to end your legal relationship with your spouse. For various reasons, some Chicago area residents want to be able to end the marriage without having to say they are divorced. Sometimes religion plays a role and a person would rather be able to end the legal relationship without having to be divorced within the church or congregation. Sometimes people simply do not want what they believe to be a social stigma of being divorced and they believe an annulment could be an option.

Inquiries about annulment instead of divorce are especially common in scenarios where the spouses have been married for a very short time and own little property together. However, in most situations this will not be an option. What can you do?  You can file for divorce, or legal separation could still be an option instead of divorce. Let us tell you more.

Annulment is Only a Process Available to Parties Who Have an Invalid Marriage

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), an annulment is not one of the multiple options to dissolve a marriage. Rather, it is the process for legally dissolving a marriage, with the result that the marriage will be seen as never being in effect. And to be clear, the IMDMA does not use the term “annulment.” Rather, it uses the term “declaration of invalidity of marriage.” Accordingly, a declaration of invalidity of marriage, or what is often colloquially known as an annulment, is only feasible in limited circumstances. Examples of situations in which an annulment could occur includes, for example:

  • One of the spouses was already legally married to another person at the time of the marriage;
  • One of the spouses did not have capacity to give consent to the marriage;
  • One of the spouses was underage at the time of the marriage and did not have parental permission; or
  • One of the spouses was forced or tricked into the marriage through fraud or duress.

Legal Separation as an Option When You Do Not Want to Be Divorced

If you do not want to be divorced but you want to have an officially, legally binding order in place through which your marital property is separated and an allocation judgement (allocating parental responsibilities) is put into place, you have another option even though you cannot seek an annulment. When a married couple does not want to get divorced but wants the benefits of a divorce, they can choose to have a legal separation. While some states do not expressly provide for a legal separation, Illinois does. There are some important distinctions from a divorce.

First, the court cannot value or allocate marital property unless there is a property settlement agreement in place. What this means is you will need to work with your spouse (through your lawyers, if necessary) to create a property settlement agreement in which you distribute marital property. If the agreement is not unconscionable, the court can make that property settlement agreement into law, turning the terms into final and non-modifiable terms. Like a divorce, a legal separation does allow the court to award spousal maintenance and to determine child support obligations.

Contact a Chicago Divorce Lawyer

Do you have questions about annulment, divorce, and legal separation? A Chicago divorce attorney at our firm can help. Contact Gordon & Perlut, LLC to learn more.