De-Coupling in Illinois

 Posted on January 29, 2015 in Divorce

Divorce is a common occurrence in the United States. Most Americans “enjoy” this right and probably take it for granted that an unsuccessful marriage does not have to last forever. In fact the right to divorce exists everywhere in the world – with one exception.

 The Philippines is the only country that does not allow a majority of its citizens to divorce. (The country permits divorce between Muslim couples.) The only recourse for unhappily married couples is church annulment, civil annulment or legal separation. Of course, couples who legally separate are not allowed to remarry, and annulment requires evidence that the marriage was defective (e.g., one of the parties was too young or already married). Note that a marriage cannot be annulled due to irreconcilable differences or infidelity.

Unhappily married Illinois couples have three main de-coupling options: annulment, legal separation and divorce. An annulment treats a marriage like it never happened. However, a declaration for invalidity of marriage must be sought within a specific time frame. A couple remains married during a legal separation, but this option permits them to divide marital assets and to determine custody and other related issues. A divorce ends the marriage and is often fraught with emotional complications. But unlike a separation, the couple will no longer be legally bound together.

Annulment

 There are only four circumstances in which a court will annul a marriage:

1. A party lacked capacity to consent to the marriage, likely due to mental illness or the influence of alcohol or drugs;
2. A party lacks the physical capacity to consummate the marriage, and when the couple married the other party was not aware of this incapacity;
3. A party was 16 or 17 years old and did not have parental consent or judicial approval; or
4. The marriage is prohibited, like if one of the parties is already legally married to someone else.

Legal Separation

Generally, parties petitioning for legal separation live in separate residences but do not want to divorce (perhaps for personal or financial reasons). However, the parties might want a court to legally define their rights and responsibilities regarding child custody, child support, visitation rights and spousal support. Note that legal separation does not foreclose a later divorce – that option remains open to all married couples.

Divorce

A party petitioning for divorce must invoke specific grounds, such as:

• Adultery;
• Impotence;
• Habitual drunkenness,
• Substance abuse;
• Physical or emotional abuse; or
• Irreconcilable differences.

While the respondent may contest the grounds for divorce, the court will most likely grant the divorce petition. Illinois does not force unhappily married couples to remain together.

If you want out of your marriage, contact one of our experienced Kane County family law attorneys. We have experience handling annulments, legal separations and divorces. Contact us today for a consultation. We can assist those in the St. Charles area.