Fixing a Mistake: Getting an Annulment in Illinois

annulment, Wheaton family law attorneysUsually, when two people marry and decide that it was a mistake, they simply file for divorce. However, in some situations, they opt instead for an annulment. There are many reasons that people wish to obtain an annulment, but in truth, the requirements are very strict. Divorce is easier to get, but sometimes, an annulment may suit your purposes better. It is a good idea to understand the difference between the two.

Requirements for an Annulment

There are only four valid reasons to obtain an annulment (otherwise known as a declaration of invalidity of marriage) in Illinois, as opposed to a divorce. They are:

  • One of the parties to the marriage was underage and did not obtain a parent’s consent;
  • One of the parties is unable to engage in marital relations;
  • One of the parties could not consent to the marriage, either due to being under the influence of a substance, mentally ill, or because their consent was obtained due to force or duress; or
  • The marriage was illegal, as it was between two people related to a certain degree or one or both participants were still married to other people.

These are the only reasons that a declaration of invalidity of marriage may be obtained in this state. Any other reason, including religious incompatibility or crimes committed against one or both spouses (such as spousal abuse), may lead to a divorce but not an annulment.

A declaration of invalidity of marriage must also be obtained within a specific period, while a divorce can happen in theory anytime. The statute of limitations on annulments ranges from 90 days (in cases of force or incapacitation) to the time until a minor turns 18 years old.

Pros and Cons of Declaring a Marriage Invalid

While many attempt to get an annulment for religious reasons, there are actually very few upsides to declaring your marriage invalid as opposed to obtaining a simple divorce. With a declaration that your marriage is invalid, it will usually be entered as retroactive. That means that legally, your marriage never existed and that the court will not have any authority to adjudicate issues like parental rights and child support, maintenance (formerly called alimony) and/or property division. If your marriage is declared invalid, you must go through an entirely separate proceeding to handle the other affairs that a divorce court would normally handle.

Some people worry that their children will have their paternity questioned if they have their marriage declared invalid, but this is not the case in Illinois. As long as the marriage was believed to be lawful at the time their children were born, their paternity will not be at issue under Illinois law. Thus, this question is irrelevant in deciding which process would work best for you.

A Divorce Attorney Can Help

Even if you and your spouse decide that declaring your marriage invalid is the best choice for you, having an annulment and divorce attorney on your side can be invaluable for making the process smoother and more efficient. Contact a skilled Wheaton annulment attorney for a free consultation today.

 

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=3000000&SeqEnd=3700000

Divorce and Immigration Status: What Changes?

immigration, Wheaton divorce lawyersToday’s world is a globally connected one. More and more people are marrying citizens of other countries and moving to other countries to be with their spouses. If you marry a foreign national and want to live with them in the United States, your spouse will likely need to become a Lawful Permanent Resident (LPR, or ‘green card holder’), and may one day become a citizen. However, if your marriage does not work out, your spouse may experience significant immigration problems.

Before Approval

If you and your foreign-born spouse intend to make your home in the United States, there is a specific procedure you must follow in order for your husband or wife to obtain legal status in this country. A U.S. citizen spouse must submit an application called an I-130, Petition for Alien Relative, in which they promise to sponsor their foreign spouse. This means vouching for his or her character and also promising that he or she will not require public assistance benefits or become homeless.

If your relationship falls apart and you get divorced before the paperwork has been approved or otherwise acted upon, the petition is essentially dead. You may still be able to sponsor the person if you so choose, but you would no longer be his or her spouse. Since your relationship will have changed status, a new petition must be submitted, and the old one will no longer be valid. In other words, if you divorce your wife, but still choose to sponsor her as a friend, you may do so, but the petition listing you as her husband is no longer accurate, so you must start fresh.

Sponsorship is legally enforceable, and there can be penalties incurred if the immigrant either becomes a public charge or otherwise winds up in a severely disadvantaged situation.

Preventing Marriage Fraud

If your spouse’s petition is approved, he or she will be granted Lawful Permanent Resident (LPR, or “green card holder”) status. A common, persuasive point of argument in these cases is ensuring that USCIS believes your marriage is genuine. A divorce in a very short period of time may appear to be a sign of a fraudulent marriage and lead to heightened scrutiny even if your marriage was in good faith.

For this reason, LPR applications for spouses are most often granted with conditions. Conditional permanent residency allows the person to be with his or her family while any further background checks continue. USCIS may take months or years to complete verification of someone’s application, and there is simply no reason to detain someone for so long. Conditional permanent residence usually lasts for a two-year period.

In order for the conditions to be removed, your spouse must apply and show that either you are still married, that he or she has been widowed or battered, or that he or she is now divorced. If a divorce occurred during the two-year conditional period, your former spouse may apply for a waiver, which in this case is essentially a chance to prove his or her good faith.

An Attorney on Your Side Can Help

Juggling divorce proceedings and an immigration case at the same time is too much for most people to take on alone. If you are in such a situation, contact an experienced DuPage County family law attorney to discuss your options. Call 630-871-1002 for a free consultation with the Andrew Cores Family Law Group today.

 

Sources:

https://www.uscis.gov/i-130

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage

When Divorce and Bankruptcy Meet

bankruptcy, Wheaton divorce lawyersSometimes, things simply go bad. It is thankfully rare, but it is not unheard of that someone would have to file for bankruptcy and divorce at the same time. If this happens to you, you may question whether or not to file for both at the same time, or if not, which matter to pursue first. Illinois divorce laws and bankruptcy laws make the answer to that question fairly clear.

Which to File First?

Illinois divorce law and bankruptcy law essentially make filing both petitions at the same time impossible. When you file for bankruptcy, you generally hand over your assets to the care of a bankruptcy trustee for sale or disposition as necessary to pay off your creditors. Once you have commenced a bankruptcy filing, you may not make unilateral decisions about your property. Technically it is no longer yours. Thus, there is nothing for a family court judge to divide.

Though you are not generally able to file both bankruptcy and divorce petitions at the same time, the question of which order you ought to file them in is up to the individual. In most situations, it is recommended to file for bankruptcy before divorce, especially if you get along well with your spouse. The reasons are straightforward in that if you file for divorce first, property division will almost certainly give you new assets, which will then almost certainly be sold to pay your existing debts. Therefor, filing for divorce before a bankruptcy filing can put you at a significant disadvantage.

The Advantages of Bankruptcy First

There are several reasons why filing bankruptcy before divorce is the best course of action. Illinois does allow married couples to claim two sets of exemptions if they file jointly, which means that double the amount of property can be kept out of the hands of the bankruptcy trustee. It is also possible to discharge joint debts in this manner if you have many of them.

An important thing to be aware of in this regard is that filing for Chapter 7 bankruptcy does have income limits. In Illinois, your monthly income must be below the median amount for your household size, or you must be able to pass the means test. If you are unable to do so, it may be in your best interests to file for divorce first, because then you and your former spouse should be able to qualify individually. If you intend to file for Chapter 13, however, you would both be responsible for the repayment plan.

If you do file for bankruptcy before divorce, be advised that you should also have a good enough relationship with your spouse to discuss support issues beforehand. If you have no income, or you will not have access to certain amounts of income, it does not make sense for a judge to require that you pay support based on that income.

A Legal Professional Can Help

If you are in a situation where bankruptcy and divorce are both on your horizon, an experienced divorce attorney can make all the difference. The compassionate Wheaton divorce attorneys at our law firm are well versed in the complexities of Illinois divorce law, and we will put that knowledge to work for you. Contact us today to discuss your options.

 

Sources:

https://www.law.cornell.edu/uscode/text/11/704

http://www.illinoisbankruptcy.com/exemptions.html

https://www.legalconsumer.com/bankruptcy/means-test/state.php?st=IL