Archive for the ‘Declaration of Invalidity of Marriage’ Category

Divorce, Legal Separation, or Declaration of Invalidity of Marriage

March 10th, 2015 at 5:00 pm

invalidity of marriage, legal separation, divorce, Chicago Divorce LawyerUnhappily married couples that wish to separate have three specific options under the law: divorce, declaration of invalidity of marriage, and legal separation. A declaration of invalidity of marriage, often referred to as an annulment, ultimately voids the marriage and is not appropriate for every situation. It has strict requirements and must be pursued within a certain period of time. A legal separation permits couples to establish child support and maintenance obligations and make custody arrangements while remaining legally married. A divorce also permits couples to establish support obligations, as well as divide marital assets and establish custody. Unlike a legal separation, divorce dissolves the marriage.

Declaration of Invalidity of Marriage

When a marriage is declared invalid, it is treated as if the marriage never took place. This is an extreme remedy and the law provides only four situations in which a court will enter a declaration of invalidity of marriage:

  1. One or both parties were unable to consent to the marriage. For example, a person with a mental illness or under the influence of a controlled substance may be determined to lack the ability to appropriately consent.

  2. A party cannot physically consummate the marriage. However, a marriage may only be annulled for this reason if the other party was unaware of such incapacity prior to the marriage.

  3. One or both parties were under 18 years old and did obtain parental consent or judicial approval to marry.

  4. The marriage is prohibited by law. Polygamy, for example, is illegal in Illinois. Therefore, a second marriage while still legally married to another would be declared invalid under this provision.

Legal Separation

In some cases, a married couple may no longer wish to live together, but personal or financial reasons prevent them from petitioning for divorce. Such a couple may elect to petition for legal separation. The couple will remain legally married, but the court may, among other considerations, establish a child custody arrangement, define visitation rights, and determine obligations for child and/or spousal support. Opting to legally separate does not prohibit a couple from filing for divorce in the future; divorce remains a viable option.

Divorce

A decree of divorce officially ends a marriage, but the process can be long and contentious. The first step is filing a petition, which must include specific grounds for divorce. The other party may contest those grounds, but the court will likely grant the petition. The grounds include:

  • Adultery;
  • Habitual drunkenness;
  • Impotence (this is also grounds for annulment, but there is no delineated time-frame associated with divorce);
  • Physical or emotional abuse; or
  • Substance abuse.

Most often, couples cite irreconcilable differences, which is a much more general grounds for divorce. However, in order to obtain a divorce under irreconcilable differences, the couple must be separate for two years. This requirement, however, can be waived by agreement.

If you are unhappily married and would like to know more about your options regarding a declaration of invalidity of marriage, legal separation or divorce, contact one of our Chicago divorce attorneys today. We have offices in Schaumburg, Wheaton, Northbrook, Orland Park and downtown Chicago.