Divorce vs. Annulment— Does it Matter?
People use the terms ‘divorce' and ‘annulment' interchangeably, but there is a difference between the two that can have serious consequences. Illinois law defines divorce as a legal procedure that results in the termination of the marriage; basically, this means there was a valid, legal marriage under the laws of the state of Illinois that has now been terminated. Moreover, as part of the divorce, both parties will get an equitable portion of the assets that belonged to the marital estate, which a divorce judge will divide between the parties.
Annulments, on the other hand, target the validity of the marriage in the first place. The process of annulment under Illinois law is known as a declaration of the invalidity of a marriage. This process is designed to determine whether the marriage ever legally existed or whether it was invalid right from the start. The Illinois Marriage and Dissolution of Marriage Act has specific conditions for determining whether a marriage may be annulled for being invalid. Contrary to divorce, a successful annulment may mean that each party gets to keep his or her own assets even though those assets were acquired during the marriage; in other words, the assets never legally become part of the marital estate.
Before a judge will issue a declaration of invalidity of a marriage, one of four very limited circumstances must exist:
- A party lacked capacity to consent to the marriage at the time the marriage was solemnized because of mental incapacity, because he or she was under the influence of an intoxicant, or because he or she was induced into the marriage by force, duress or fraud.
- One party is unable to have sexual intercourse to consummate the marriage, and the other party did not know about it before the marriage.
- One party was 16 or 17 years old and did not have parental, guardian, or judicial approval.
- The marriage is prohibited by law (e.g., siblings may not marry one another).
If you believe your marriage may never have been legally valid and you desire an annulment, please contact Mirabella, Kincaid, Frederick & Mirabella. We understand the consequences of attaining an annulment over a divorce, and we can assist you in determining whether an annulment is appropriate and in dealing with the consequences of either an annulment or a divorce.