How Divorce Differs from Annulment (Invalidity of Marriage)

November 15th, 2019 by

Divorce and Annulment (invalidity of marriage) are distinct legal determinations that sever marriages in different ways.

How divorce differs from annulment/invalidity if marriage

In Illinois annulment is now called Invalidity of Marriage

In Illinois, about 26,000 marriages were legally severed in 2016, the last year for which data is available. It’s not clear how many of those marriages ended in divorce or invalidity of marriage because the numbers are lumped together in the state of Illinois’ report.

The statistics may be combined because the number of annulments granted by Illinois family court judges is relatively small, especially compared with divorce numbers. Despite their statistical relationship, divorce and invalidity of marriage differ greatly in terms of legal process and outcome.

Read, ‘How to Calculate Illinois Spousal Support in 2019‘ for additional information on the divorce process in Illinois.

Divorce vs. Invalidity of Marriage: How legal status differs

  (750 ILCS 5/301) (from Ch. 40, par. 301)
    Sec. 301. Declaration of Invalidity – Grounds.) The court shall enter its judgment declaring the invalidity of marriage (formerly known as an annulment) entered into under the following circumstances:
    (1) 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;
    (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;
    (3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or
    (4) the marriage is prohibited.
(Source: P.A. 80-923.)
    (750 ILCS 5/302) (from Ch. 40, par. 302)
    Sec. 302. Time of Commencement.) (a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of the following persons and must be commenced within the times specified:
    (1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal representative of the party who lacked the capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition;
    (2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year after the petitioner obtained knowledge of the described condition;
    (3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or guardian, prior to the time, the underaged party reaches the age at which he could have married without needing to satisfy the omitted requirement.
    (b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2) and (3) of Section 301.
    (c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by either party, the legal spouse in case of a bigamous marriage, the State’s Attorney or a child of either party, at any time not to exceed 3 years following the death of the first party to die.
(Source: P.A. 80-923.)

The central difference between a Divorce and Invalidity of Marriage

The central difference is that a divorce judgment ends a legal marriage, while an annulment now known as invalidity of marriage determination rules that the marriage was invalid from the beginning.

If a family court judge grants two parties an annulment, their marriage is essentially erased. Though the marriage records remain on file with the county where the couple got married, in the eyes of the law the marriage never happened. The judgment, in this case, is called a Declaration of Invalidity of Marriage.

Divorce vs. Invalidity of Marriage: How judgments work

During a divorce proceeding, the parties must simply state that there are irreconcilable differences and be separated for a specified period of time.

In order to be granted an annulment or invalid marriage in family court, by contrast, one or both parties bringing the claim person must prove the marriage was invalid from its beginning. To do this, they must prove one of a number of criteria.

When can you get an Annulment or Invalidity of Marriage?

A marriage can be annulled if a person proves that one party:

1. Lacked the capacity to consent

“(1) 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;

2. Is not physically able to consummate the marriage

(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;

3. Did not have parental/guardian approval (16 or 17 years of age)

(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or

4. The marriage is not allowed

(4) the marriage is prohibited.

750 ILCS 5/301.

Contrary to a common belief, family court judges will not grant an annulment based solely on a marriage’s short duration. The case must meet one of these conditions in order to be approved.

Time restrictions for seeking Invalidity of Marriage

Further, Illinois law has very specific time limitations as to when an action for Invalidity of marriage must be filed within. Failure to timely file will result in the need to pursue a divorce in lieu of action for invalidity of marriage.

The process of dividing two people’s intertwined lives can be a particularly painful one, but necessary for the parties to move on. One of the most difficult aspects involves separating the couple’s finances, and the process differs between divorce and Invalidity of Marriage proceedings.

Role of an Illinois Family Court Judge on a Couple’s Divorce

As part of a family court judge’s ruling on a couple’s divorce, the court approves a plan to divide the couple’s assets and debts, and often a ruling for spousal support. The judgment takes into account many factors, including the parties’ ages and future earning potential.

During the invalidity of marriage proceeding, the intention is to undo the marriage, to make it as though it never took place. For this reason, the aim in judgment is to put both parties in the same financial position they were in before the marriage happened.

Each party walks away with the same assets and debts they brought into the marriage, returning them as much as possible to their original financial state.

Changes to Divorce in Illinois in recent years

Gwendolyn J. Sterk, Attorney at Law, and Kelly Burke, Illinois State Representative (36th District) discuss the modernization to family law in Illinois.

When to seek help

Contact Sterk Family Law Group as soon as possible if you believe you qualify for the invalidity of marriage proceeding. Our legal team will evaluate your unique situation and partner with you to create a plan to help you move forward.

Our experienced family law attorneys also assist with prenuptial agreements, post nuptial agreements, and guardianship.

Serving Clients in Cook CountyWill County and DuPage County.

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