Divorce vs Annulment in Illinois

Updated on May 13, 2021
Updated: October 5, 2023

When a couple chooses to end their marriage, they have two options and have to decide whether to pursue a divorce vs annulment in Illinois. In a divorce, the Illinois family law court orders the end of a legal marriage. While in an annulment, the court rules a marriage invalid, thus treating the marriage like it never took place. Most people assume annulment is easier to get than going through a divorce, however, that’s not always the case. Marriage annulments have stricter requirements and deadlines than divorce.

What is a Marriage Annulment in Illinois?

An annulment isn’t a legal separation. It’s a way for two spouses with an invalid and fraudulent marriage to end their marriage legally. Marriage annulments aren’t subject to Illinois divorce laws; however, they’re subject to certain legal requirements, which differ from other states.

In Illinois, marriage annulment is also known as a Declaration of Invalidity of Marriage. And marriages in the state can only be annulled if they qualify as invalid marriage. An invalid marriage occurs from a relationship that was illegal from the start and won’t be recognized by the state. It’s essential to note that annulments don’t separate a marriage. Instead, they establish a public record that the marriage was invalid, to begin with. If a marriage is invalid, but neither party seeks an annulment to prove a voidable marriage, the marriage is deemed valid.

Is Annulment the Same as Divorce?

Marriage annulments and divorces are similar because they determine the marital status of a couple. But the primary difference between the two is that annulment declares that what everyone thought was a marriage wasn’t a marriage at all, while divorce ends an existing, valid marriage. Thus, according to Illinois divorce laws, an annulled marriage never existed.

Illinois differs from other states because it doesn’t have an official court action called "annulment of marriage." However, you can ask the court for a "judgment of invalidity," which is the same thing. A judgment of invalidity is a final order stating that your marriage was invalid. But it's rarely granted in Illinois.

Divorce vs annulment in Illinois

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

  • One spouse didn't consent to marriage. Because at the time the marriage was solemnized, he or she was suffering from a mental illness or was under the influence of intoxicating drugs or alcohol. 
  • One party agreed to be married only because of fraud or coercion. For fraud to be a viable ground for annulment, it has to touch on the "essentials of the marriage," which means it affects the heart of the marriage. For example, if one spouse lied about personal wealth, this isn’t enough of fraud to warrant annulment. But if one spouse never intended to live with their spouse and only got married to avoid deportation, this is a severe enough fraud to enable the other spouse to apply for an annulment.
  • One spouse can’t consummate the marriage through sexual intercourse and hid this from their partner.
  • The marriage is legally prohibited because one spouse is still legally married to another living person; the spouses are closely related by blood or adoption, or between two persons of the same sex.
  • One party was underage at the time of marriage and failed to get the approval of a parent, legal guardian, or Illinois judge.

How Do I Annul a Marriage in Illinois?

To get a marriage annulled in Illinois, you must file a Petition for Annulment with the circuit court of the county where you or your spouse currently lives. This isn’t an official state annulment form. It's just a legal document you must file, sufficiently explaining why your marriage is invalid.

Next, you must serve the petition for invalidity of marriage to your spouse, who may agree or contest it. After submitting the petition to your circuit court, a family court judge will examine it to establish whether you have grounds for an annulment. If you can get a judgment of invalidity, you’ll be a single person, free to marry again.

To annul your marriage in Illinois, you must:

  1. Know the “statute of limitations” affecting your ability to ask for a judgment of invalidity of marriage, and talk to an Orland Park divorce lawyer. If you’re contemplating asking a judge to void your marriage, the experienced family law lawyers at Tommalieh Law can guide you through the custodial and child support family law issues, and the financial ramifications you may be facing. Consult a divorce lawyer as soon as possible because often, you might only have 90 days to annul the marriage.
  2. File a Petition for Annulment with the clerk of the circuit court in the county you or your spouse currently live. Your petition should explain why the judgment of invalidity should be granted, and it should provide facts about your spouse and any children involved. It’s essential to note that the state doesn’t provide a standard template form for you. Thus, it’s up to you to draw up the pleading yourself. The clerk of the circuit court will date-stamp the Petition. The clerk will also enter the document into the court record and collect a filing fee.
  3. Your spouse will be notified about your petition, and he or she will either agree or disagree with your position. Your spouse has a limited amount of time (20 to 30 days, depending on the jurisdiction) to file an Answer to the Petition for Annulment.
  4. Attend the court hearing. Both you and your spouse must attend the court hearing on your Petition for Annulment. You can bring evidence and witnesses to prove that your marriage is invalid. Further, you must answer all the questions the judge asks you truthfully. Typically, the family court judge will decide by the end of the hearing. However, he or she can hold the case open for a limited amount of time if additional testimony and/or evidence is needed.
  5. If the court determines your marriage is invalid, you’ll receive the Declaration of Invalidity of Marriage, signed by the Illinois family court judge. The court clerk will enter the decision into the public record. This declaration means technically you have never been legally married.

Which is Better a Divorce vs Annulment in Illinois?

When a marriage is annulled, the judge still needs to divide marital property, determine child custody, child support, alimony, and the many other family law matters that would be determined in a divorce.

In Illinois, in a divorce, both spouses consent to end the marriage on the grounds of irreconcilable differences. This means that Illinois family law courts are more concerned with dividing marital property equitably and may consider matters, such as spousal support.

A couple reviewing a marriage annulment with an attorney.

Since an annulment invalidates the marriage and often involves victims who were coerced, the judge is likely to restore both spouses to how they were before the marriage. Spouses who qualify for the strict grounds to annul a marriage in Illinois may benefit legally in the following areas:

  • Simplified division of marital property. Marital assets and property are likely to be awarded to their rightful owner as they were before the marriage instead of being equitably divided like in a normal divorce.
  • Shared marital debt. The court splits back marital debts accumulated before the marriage to how they were before the marriage. The family court judge also divides debt accumulated during the marriage equitably among the spouses.
  • Alimony. Often, alimony and spousal support aren’t on the table for marriage annulments. However, in cases of both divorce and annulment, child custody and child support have to be decided.
  • Never legally married. Although it might not directly affect you, after a marriage annulment the state views it like you were never married at all. However, it’s crucial to note for religious annulments, you must consult your clergy or church.

For everything except hidden impotence, a marriage annulment must be filed within 90 days of finding out about it; this doesn’t mean within 90 days of the marriage itself.

Related: Child Support Lawyer in Orland Park

How Long Do I Have to be Married to Get an Annulment in Illinois?

In Illinois, there are many time limits for filing for a marriage annulment depending on the reason it’s filed. Often, the time to petition to annul a marriage isn’t from the time of the marriage itself, but from the time you found out about the issues. This limit is often 90 days.

For a marriage to an underage spouse, you can only file for the annulment once the minor turns 18. However, for illegal marriages, there is no statute of limitation.

If you’re contemplating an annulment to end your marriage, seek the help of an experienced family lawyer in Illinois. Although having your marriage declared invalid may give you some emotional peace of mind, the requirements for annulment are difficult to meet. And this might not be the right option from a property standpoint, especially if you and your spouse were married for a long period.

At Tommalieh Law, we’re experienced in all aspects of divorce law and can walk you through all of your legal options. To schedule a free initial consultation, contact our Orland Park law office today at (708) 232-0017.

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