What is the Difference Between Divorce and Annulment?

What is the Difference Between Divorce and Annulment?

By: M. Scott Gordon

Sometimes married couples in the Chicago area who have been together for a short time have questions about whether they should seek an annulment instead of a divorce. Sometimes people are under the assumption that annulments are easier to get than divorces. In general, most of these notions about annulment are misconceptions. As such, it is important for married couples in the Chicago area who want to dissolve their marriages to understand the difference between filing for divorce and seeking an annulment.

Annulment is the Legal Declaration of Invalidity of Marriage

The first thing to know about annulment is that it is now known under Illinois law (750 ILCS 5/) as the “Declaration of Invalidity of Marriage.” To address some common misconceptions about annulment, this is not the legal practice to use if your marriage was a mistake and only lasted for a short time, or if you want to dissolve your marriage quickly. Rather, an annulment, or the declaration of invalidity of marriage, is only used to declare a marriage invalid under one of the following statutory circumstances:

• Lack of capacity: a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;
• Inability to have sexual intercourse: a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time of the marriage was solemnized the other party did not know of the incapacity;
• Underage marriage: a party was aged 16 or 17 years and did not have the consent of his parent or guardian or judicial approval; or
• Illegal marriage: the marriage is prohibited.

Marriages can be illegal for a number of reasons. For instance, if one or both of the parties was already married to someone else, or if the parties are close relatives, then the marriage may be prohibited.

In order to have your marriage declared invalid, you must abide by specific timelines in the statute. The timelines for seeking a declaration of an invalid marriage depend upon the reason for your decision to seek a declaration of invalidity of marriage. The following are the timetables for each cause:

• Lack of capacity: 90 days following knowledge of lack of capacity;
• Inability to have sexual intercourse: one year following knowledge of condition; or
• Underage marriage: prior to the time the underage part reaches the age of consent.

If the marriage is prohibited, there is no time limit.

Should I File for Divorce or Seek a Declaration of Invalidity of Marriage?

First, if your situation does not fall under one of the situations described above and you want to dissolve your marriage, you will need to file for divorce. Moreover, there really should be no situations in which a couple can choose between divorce or a declaration of the invalidity of marriage. To be clear, if your marriage is invalid to begin with, you likely should not file for divorce, and as long as your marriage was valid, you probably should not seek to have it declared invalid.

If you still have questions or concerns, a Chicago divorce lawyer can help. Contact Gordon & Perlut, LLC to learn more about the services we provide.