The Difference between a Divorce and a Declaration of Invalidity of Marriage

               I was recently asked, what is the difference between an annulment and a divorce? This particular client decided to leave her husband, but wanted to know all of her options. Although most of our clients seek to dissolve their marriage by obtaining a divorce, the Illinois Marriage and Dissolution of Marriage Act also allows a party to seek a judgment declaring the marriage invalid, also known as an annulment. Seeking to declare a marriage invalid is very different from obtaining a divorce for the reasons that follow.

                The first difference between a divorce and an annulment is that the grounds for seeking an annulment are much more restrictive than for seeking a divorce. In Illinois, while a party may seek a divorce due to “irreconcilable differences,” a party may only seek an annulment under certain circumstances. Pursuant to Section 301 of the Illinois Marriage and Dissolution of Marriage Act, a party may ask the Court to declare the marriage invalid only if the party is able to prove one of the following four circumstances: (1) one of the parties to the marriage lacked the capacity to consent to the marriage at the time they were married; (2) one of the parties to the marriage lacks the physical capacity to consummate the marriage and the other party did not know of this incapacity; (3) one of the parties to the marriage was 16 or 17 years old at the time of the marriage and did not have a parent’s or guardian’s consent to marry; or (4) the marriage is prohibited by Illinois law. Because a party may only seek an annulment on one of these grounds, it is much more difficult to declare a marriage invalid than it is to divorce your spouse. Furthermore, most people’s circumstances will not apply to these situations and, as a result, they may not request a judgment declaring their marriage invalid.

                The second difference between a divorce and an annulment is the effect of the annulment itself. In Illinois, when a party divorces their spouse, the divorce judgment recognizes that the parties were married, dissolves the marriage, and ultimately distributes the parties’ property pursuant to the circumstances surrounding the marriage. However, an annulment can declare the marriage invalid as of the date of the marriage. Pursuant to Section 304 of the Illinois Marriage and Dissolution of Marriage Act, if the Court finds that the parties meet one of the above circumstances and declaring the marriage invalid would not negatively affect any third party, then the Court will declare the marriage invalid as of the date of the marriage. This means that the parties’ marriage was never valid and, as a result, the law treats the parties as if they were never married.                

                Deciding whether or not to divorce your spouse is not an easy decision. It is important to explore all of your options before deciding your course of action. However, it is also important to note that, unless you meet one of the above four criteria, you may not seek a judgment declaring your marriage invalid. If you are considering a divorce and want to know what your options are, please feel free to contact our office for a consultation.

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