Archive for the ‘Legal Separation’ 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.

What are the Differences Between a Legal Separation and a Divorce?

January 27th, 2015 at 8:14 pm

legal separation and divorce difference, Chicago divorce and family law attorneyNot everyone understands the distinction between a legal separation and dissolution of marriage. However, it is important for couples experiencing marital problems to understand the options that are available to them, especially after deciding that they can no longer live together.

Legal Separation

Pursuing a legal separation is similar to filing for divorce. The main difference between a separation and dissolution is that a legally separated couple is still married. Keep in mind that opting for a separation does not prohibit a divorce in the future–that option remains open. A couple might want to consider a legal separation if they:

  • Do not want a divorce;
  • Live in separate residences; and
  • Want a court to legally define their rights and obligations regarding child support, and maintenance payments.

Note that a court will also address the issues listed in the third bullet point during a divorce proceeding. The court generally will not address issues regarding the division of property in a legal separation. However, the entry of a judgment for legal separation will stop the accumulation of marital property. In other words, any property that either spouse acquires after the legal separation would be presumed to be nonmarital property if either spouse files for divorce in the future.

Divorce

A petition for legal separation generally does not have to include a party’s specific reasons for pursuing that option. The same cannot be said for a divorce petition. A party petitioning for divorce must establish one of the following grounds:

  • The petitioner’s spouse was at the time of the marriage and continues to be naturally impotent;
  • The petitioner’s spouse was already married when he or she married the petitioner;
  • The petitioner’s spouse was adulterous;
  • The petitioner’s spouse deserted the petitioner for at least one year;
  • The petitioner’s spouse has been habitually drunk or abused addictive drugs for at least two years;
  • The petitioner’s spouse has threatened or attempted to kill the petitioner;
  • The petitioner’s spouse is guilty of physical or mental cruelty;
  • The petitioner’s spouse is a convicted felon; or
  • The petitioner’s spouse infected the petitioner with an STD.

In addition to the above grounds for dissolution, a petitioner can prove that there are irreconcilable differences between the spouses that have caused the marriage to break down.

However, Illinois only permits divorce based on irreconcilable differences if the parties have been separated for at least two years. If the parties have lived apart for at least six months then that requirement may be waived, but only if both consent in writing. It is important to note that this separation requirement does not require a “legal separation.”

The respondent may contest the grounds of the divorce petition. While the chances of staving off divorce are slim, he or she can request that the court order a conciliation conference. If the parties are unable to reconcile then the court will proceed with the divorce.

If you are considering a legal separation or a divorce, or if your spouse has served you with a separation or divorce petition, contact one of our family law attorneys in Chicago, IL at Anderson & Associates, P.C. We assist clients from our offices in Schaumburg, Wheaton, Northbrook, Orland Park, and downtown Chicago.