DIVORCE
Statute
Read at 750 ILCS 5/101 et seq.
Jurisdiction
An Illinois court has subject matter jurisdiction to enter a judgment of dissolution of
marriage if either party has maintained Illinois residency for 90 days by the date of
judgment. There is no pre-filing waiting period. 750 ILCS 5/401.
Venue
Proceedings shall take place in the county where either party resides.
Annulment (Declaration of Invalidity of Marriage)
Statute
750 ILCS 5/301
Overview
Within certain constraints, a marriage can be annulled within certain specified time
periods. As discussed below, even though a marriage is declared to be invalid,
some of the consequences of marriage continue.
The reasons to declare a marriage invalid include:
A party lacked the capacity to consent to the marriage, such as lack of mental
capacity or incapacitation by drugs or alcohol.
Marriage was prohibited by statute (750 ILCS 5/212).
Marriage was induced by fraud or duress regarding the "essentials of marriage".
Immigration fraud.
Under age without consent.
Grounds for Annulment
750 ILCS 5/301
1. A Person lacked the capacity to consent at the time of marriage ceremony for one
of the following reasons:
- Mental incapacity or infirmity.
- Influence of alcohol, drugs or other incapacitating substances.
- Party induced to enter a marriage by force, duress or fraud involving the
essentials of the marriage.
2. A Party lacks the physical capacity to consummate the marriage by sexual
intercourse and the other party did not know of the incapacity at the time of the
marriage ceremony.
3. A Party was age 16 or 17 and did not have consent of parents or guardian
or judicial approval.
4. The marriage is prohibited 5/301 (4) and 5/212 (a)(1) – (4):
- Marriages entered into prior to the dissolution of an earlier marriage of one
of the parties.
- Marriages between an ancestor and a descendent or between a brother
and sister, whether the relationship is by the half or the whole blood or
by adoption.
- Marriages between an uncle and a niece or between an aunt and a nephew.
- Marriages between first cousins unless:
- both parties are 50 years of age or older; or
- either party produces at the time of application for marriage, a
certificate signed by a licensed physician stating that the party is
permanently and irrevocably sterile.
Who Can Seek
750 ILCS 5/302(a)
- Either party or the legal representative of the party who lacked capacity if
the grounds are lack of capacity.
- Either party if the grounds are lack of physical capacity to consummate the
marriage.
- The under-age party, or his or her parent or guardian if the grounds are that
the party was 16 or 17 and doesn’t have consent.
- Either party, the legal spouse (in the case of a bigamous marriage), the State’s Attorney, or a child of either party, if the marriage is prohibited.
Time Limit
750 ILCS 5/302
- 90 days after the petitioner obtained knowledge of the lack of capacity, if that
is the ground.
- No later than one year after the petitioner obtained knowledge that either
party lacked physical capacity to consummate the marriage, if that is the ground.
- Prior to the time the under-age party reaches the age at which he or she did
not need consent to marry, if that is the ground.
- At any time not to exceed three years following the death of the first party of the marriage to die if the ground is that the marriage is prohibited.
Constraints on the Declaration of Invalidity
- Children born or adopted are legitimate. (5/303)
- Children whose parents marry after their birth are legitimate. (5/303)
- Property is disposed of in accordance with the rules regarding dissolution
of marriages. (5/303).
- Any person who (a) goes through a marriage ceremony, (b) has cohabited
with the other person, and (c) in good faith believes that he or she is married
to the other person is a putative spouse until he or she gains knowledge of the invalidity. If a spouse is putative they acquire the rights of legal spouse
including the right to maintenance following termination of his or her status.
However, this section does not apply to common law marriages contracted in
the State after June 30, 1905.
Legal Separation
750 ILCS 5/402
- A spouse living apart from his or her other spouse without fault may be able
to obtain reasonable support and maintenance, so long as they live apart.
- To obtain a judgment for legal separation a person files a petition in the circuit
court of the county in which the respondent resides or in which the parties last
resided together as husband and wife. If the respondent cannot be found in
this state, the petition may be filed in the county where the petitioner resides.
- Petition requirements – The requirements for a petition are the same as a
petition for dissolution of marriage. (5/403(a))
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(*taken from the Attorney Desk Reference Manual)
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