In Illinois, one spouse may obtain a “judgment of invalidity” or an annulment under the following grounds:
(1) One spouse lacked the capacity to consent to marriage because at the time of the ceremony the spouse suffered from a mental disorder, was under the influence of alcohol, or force, fraud, or duress was involved;
(2) one spouse lacks the physical capacity to consummate the marriage and hid this fact from the other spouse;
(3) the marriage is legally prohibited (bigamy and incest); or
(4) one of the spouses was a minor (16 or 17-years-old) at the time of the marriage and and no consent was obtained from the legal guardians.
Strict time limitations apply and limit when a judgment of invalidity can be filed in Illinois. For the reasons set forth in (1), the action must be brought by either party or the legal representative of the party who lacked consent within ninety (90) days after the petitioner obtained knowledge of the condition. For the reason set forth in (2), the action must be brought by either party no later than one (1) year after the petitioner obtained knowledge of the condition. For the reason in (3), the minor or guardian must bring the action prior to reaching the age of majority. For (1), (2), and (3), the action cannot be brought after the death of either of the married parties. For the reason in (4), the action can be brought by either party, the legal spouse, the State’s Attorney, or a child of the parties any time not to exceed three years following the death of the first party to die.
The procedure for filing a judgment of invalidity in Illinois is the same as filing for divorce. Either of the spouses must be a residence of the state at least ninety (90) days before the filing of the petition. The petition, which must contain certain required language, is filed along with the summons. The responding spouse must be personally served. A hearing is held before the judge. After the hearing, the judge must determine if a ground has been met. If so, the judge can sign an order granting the judgment of invalidity.
If an annulment is granted, then the spouses are treated as if they were never married, which is different from a divorce action. A divorce action ends a marriage that is a valid marriage. If children are born during the marriage, a judgment of invalidity does not affect the legitimacy of the children. The judge must decide if the judgment should be made retroactive or not to the date of the marriage. If the judgment is retroactive, the court does not have authority to decide issues of custody, visitation, and child support or to divide the parties’ property. If the judgment is made retroactive, a separate proceeding under the Illinois Parentage Act would need to be filed to deal with custody, visitation, and child support issues. In addition, if the judgment is retroactive, the court may not award alimony, and the spouses must figure out themselves how to divide marital property.
Because of the legal requirements for getting a judgment of invalidity, it is harder to obtain a judgment of invalidity than it is to obtain a divorce. It is important to consult with an attorney regarding your options.