Separation, Divorce and Annulment: Defining the Differences

 Posted on July 29, 2015 in Family Law

People are often confused by the many terms tossed around in the legal profession, especially family law. Commonly, these terms include separation, divorce and annulment. It is important to know the difference between these terms so you can properly evaluate your situation, especially if you are experiencing marital problems. 

Generally, separation means that both spouses are still married to each other and cannot get married to someone else. Divorce means that a marriage is formally dissolved and both spouses are free to marry whomever they please. Finally, annulment dissolves a marriage as well but treats the marriage as if it never happened. 

If you are having marital issues and you cannot resolve them on your own, you should contact an experienced Illinois divorce attorney who will be able to advise you of your options and point you in the proper direction.

Legal Separation in Illinois

In order to be considered legally separated in Illinois, several requirements must be met. These requirements dictate that:

• Both spouses must be living separate from each other at the time court action begins;

• The spouse seeking separation must prove they are not the reason they caused the separation;

• The spouses have lived in the State of Illinois for more than 90 days; and

• One spouse must serve the other spouse with notice of the separation lawsuit.

It is important to note that, even if you file for legal separation, and it is granted, you are still considered married under the law and you cannot marry anyone else. 

Annulment in Illinois

Generally, some people choose to annul their marriages because it eliminates all record of the marriage entirely, which, for example, may allow for an easier remarriage within their religion without the need for divorce. Under Illinois law, your marriage can be annulled if you meet certain requirements. These requirements include:

• Lack of Capacity: If one of the spouses lacked the capacity to consent to the marriage due to mental illness or alcohol or drug use at the time of the marriage;

• Force, Fraud or Duress: If one spouse was forced into the marriage by the other spouse, or that you were lied to by your spouse and the lie went to the heart of the marriage;

• Lack of Physical Capacity: If one of the spouses lacks the ability to consummate the marriage through sexual intercourse and it was hidden from the other spouse prior to marriage; and

• Illegally Prohibited: If the marriage is prohibited by law, such as bigamy, incest or one of the spouses was under the age of 17 at the time of the marriage and did not receive approval from a parent, guardian or judge. 

Divorce under Illinois Law

In order to obtain a divorce in Illinois, you need to be a resident of Illinois for at least 90 days and you must meet one of the two grounds, fault or no fault divorce. No-fault divorce means that there are irreconcilable differences and the parties have lived apart for the required statutory period. Fault divorce requires grounds similar to those of annulment, but also includes adultery after marriage, domestic abuse, or habitual drunkenness.

Contact a Family Law Attorney

If you are having marital issues and your spouse is making the situation worse by the day, you should contact an experienced DuPage County family law attorney who will advise you of the best course of action and get you one step closer to solving your marital issues. Please note that a major overhaul of the Illinois Marriage and Dissolution of Marriage Act is currently underway as a result of the passing of SB 57; specifically, the bill will eliminate grounds for divorce, place a larger focus on parental responsibility, and create other changes. As such, it is imperative that you speak to one of our skilled attorneys to understand how these changes may affect your individual case.