What are the requirements to divorce if my wife is now pregnant with someone else's child?

02/12/2007 - Category:Divorce - Annulment - State: IL #675

Full Question:

I was married on July 28, 2006. The next day, my wife refused to move in with me and I have not seen her since. The reason we got married was that she told me that she was pregnant. After the marriage, I was told that the baby was not mine and the reason she married me was that I had health coverage and the father did not. The baby's due date confirms that the child is not mine, since I did not know my wife at the time of conception. My wife wants a divorce and I do too. We have not been separated six months. Do we have to wait until then in order to file for a divorce? I don't want the baby to have my name, and she wants to marry the father, with whom she is now residing.

Answer:

You may want to consider an annulment. Below are some FAQ about annulments under Illinois law.

1) What is annulment, and when can a marriage be annulled?
Annulment (declaration of invalidity) is a legal proceeding to declare a purported marriage to be invalid -- as if it had never happened.

2) What are the grounds for annulment?
a.At the time of the marriage ceremony, one of the parties lacked capacity to consent to the marriage because of mental incapacity or infirmity (e.g., retardation, psychosis, dementia, or intoxication by alcohol or drugs) or was induced to enter into the marriage by force or duress or by fraud involving the essentials of marriage;
b. A party cannot consummate the marriage by sexual intercourse and the other party did not know of the incapacity;
c.A party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval;
d.The marriage is prohibited (see above).

3) Is there a time limit for getting an annulment?
Yes. The time limit depends upon the grounds for annulment.

a.Lack of capacity to consent to the marriage:
Either party may petition, but the petition must be filed no later than 90 days after the petitioner obtained knowledge of the grounds.
b.Inability to consummate the marriage: Either party may petition, but the petition must be filed within one year after the petitioner obtained knowledge of the grounds.


c.Underage party: That party, or his or her parent or guardian, may petition for annulment prior to the time the underage party reaches the age at which marriage is permitted.

4) Must a petition for annulment be filed to set aside a prohibited marriage?
No. A prohibited marriage is void, whether or not a petition for annulment is brought. However, many lawyers believe it's better to be safe than sorry, and they recommend seeking a court's declaration of annulment.

5) If one wishes to have a void marriage annulled, who may file the petition?
A petition for declaration of invalidity for a void marriage may be filed by either party, the legal spouse in case of a bigamous marriage, the State's Attorney, or after the death of one of the parties, a child of either party, at any time not to exceed 3 years following the death of the first party to die.;

6) If grounds for annulment exist for a voidable marriage, but the petition is not filed within the prescribed time, what happens?
If a petition for annulment of a voidable marriage is not filed within the time subscribed by law, the marriage will be recognized as valid. ;

7) What is the legal status of a child born of a void or voidable marriage?
A child born of a voidable or void marriage is legitimate, even if the marriage is annulled.



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02/12/2007 - Category: Annulment - State: IL #675

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