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What Is the Difference Between Annulment and Divorce?

In some respects, the Free Britney movement began long ago when she married Jason Alexander, a childhood friend, in a quickie marriage in Las Vegas at the age of 22. Only 55 hours later, their vows were annulled. There is also Renee Zellweger and Kenny Chesney, with Renee petitioning for the annulment about four months after their union.

In their cases, like all annulments, specific grounds were stated for the annulment request. However, regretting your decision to marry isn’t a reason for annulment.

Annulment vs Divorce

The basic difference between divorce and annulment is that divorce ends an existing, valid marriage, while an annulment asserts that the marriage was never really a marriage. There are very specific grounds to file for an annulment. Divorce, on the other hand, does not require a reason. As of January 2016, Illinois is a no-fault state. Irreconcilable differences is the only reason you need.

Requirements for an annulment vary from state to state.

Annulment Process in Illinois

Unlike some other states, Illinois does not provide for an annulment, per se, but calls the action a “judgment of invalidity.” These judgments, like annulment, proclaim that the marriage was never valid. In the eyes of the law, the marriage never happened. A judgment of invalidity is difficult to get in this state.

To receive a judgment of invalidity you must file a petition with the clerk of the circuit court. The petition explains the legal reasons behind the request and provides relevant facts about the marriage. A deputy sheriff will notify the other spouse who files an answer that either agrees or disagrees with the reasons behind the petition.

A family court judge will determine whether you have grounds for an annulment. There is a court hearing that both spouses must attend. If you are granted a judgment of invalidity, Declaration of Invalidity of Marriage, you'll be considered a single person and free to marry again.

Grounds for a Judgment of Invalidity

Illinois law identifies several grounds on which a judgment of invalidity could be granted:

  • One spouse lacked the mental capacity to consent to marry
  • One spouse was under the influence of alcohol or drugs
  • One spouse coerced the other into the marriage
  • One spouse committed fraud (for example, to avoid deportation)
  • One spouse was still legally married to someone else
  • One spouse was a minor and failed to get parental permission to marry
  • Spouses are closely related by blood or adoption

Time Is a Critical Element

The deadline to file for the judgment of invalidity depends on the grounds.

  • 90 Days. For grounds of intoxication, mental incapacity, fraud, and force, either spouse must file no later than 90 days after the petitioner learned what happened.
  • One Year. If physical incapacity (unable to have intercourse) is the issue, either spouse may file no later than one year after the petitioner learns of the impotence.
  • Before Age 18. The underage spouse (or their parent/guardian) must file before the minor reaches the legal age of consent to marry.
  • Within Three Years of Death. In cases of bigamy, a petition can be filed at any time during the marriage and up to three years past the death of a spouse.

Outcomes of Annulment

Since an annulled marriage is invalid, Illinois’ marriage and divorce laws don’t apply. If there are children, an invalidated marriage does not create legitimacy problems for the children, and they share the same rights as those from a legal marriage.

Other than rare circumstances, the judge will make the judgment retroactive to the date of the marriage, which eliminates any authority to divide property or determine child custody issues. For determinations related to child custody, support, and visitation, a separate proceeding under the Illinois Parentage Act of 1984 is necessary.

Property and debt issues must be decided by the former spouses as judges generally revert each person’s financial state (assets and debt) to what it was before the marriage. Any prenuptial or postnuptial agreement is invalidated.

Religious Annulments

Religious annulments are not a legal process and do not go through the court system. Only a church or clergy member can grant a religious annulment and that protocol is specific to the church granting the annulment. In the eyes of the law, you were legally married, and the end of your marriage is a divorce.

Legal Assistance for Filing a Petition

If you are considering asking for your marriage to be invalidated, hiring a skilled lawyer to make a strong case is important. Our attorneys at the Law Offices of Jonathan Merel, P.C. have extensive experience in both divorce and annulment.

Schedule a free phone consultation by calling (312) 487-2795 or reach us through our online form.

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