Legal Separation in Illinois FAQs

Thinking about taking a break from your spouse but not ready for divorce? In Illinois, legal separation lets you live apart while making temporary arrangements for things like custody, support, and property. Unlike divorce, it doesn't end your marriage—you remain legally married. Understanding how it works can help you decide if it's the right step for now.

How Is Legal Separation Different Than Divorce?

Illinois divorce and legal separation are alike in that both begin when one spouse files a petition with the court asking for legal intervention. Both processes allow the couple or the court to resolve key issues, like child custody, support, and property division.

The main difference is that divorce legally ends the marriage, allowing both spouses to remarry. Legal separation, by contrast, does not dissolve the marriage. Even if spouses live separately and lead independent lives, they remain legally married and cannot remarry unless the court later enters a divorce decree. Legal separation is often temporary, although Illinois law does not impose a time limit. Spouses may reconcile at any point. Either spouse can also file for divorce after the court finalizes a separation. (750 ILCS 5/402 (2025).)

Why Choose Separation Instead of Divorce?

Legal separation is relatively uncommon, but it can serve specific purposes for some couples. For example, spouses may:

• Use separation as a trial run for divorce
• Remain married for religious reasons
• Preserve health insurance or other federal benefits
• Avoid the social or emotional stigma of divorce

For couples in these situations, legal separation offers a structured alternative to divorce that still allows for financial and custodial arrangements.

How Can You Legally Separate in Illinois?

Legal separation is available to spouses who are living separate and apart from each other without fault. The spouse filing for separation must live in Illinois and file in the circuit court where either spouse resides or where they last lived together as a married couple. (750 ILCS 5/402(a), (b) (2025).)

The petition must include basic facts like each spouse's age, occupation, residence, date of marriage and separation, and whether they have children. To qualify, the spouse must show they are living separately from the other spouse and did not cause the separation through misconduct. (750 ILCS 5/402(a) (2025).)

Temporary relief and trial procedures are similar to divorce cases, though temporary relief is more limited in separation cases. The court may award temporary child or spousal support, but not exclusive possession of property or restraining orders unless otherwise allowed under the law. (750 ILCS 5/402(b), 5/501 (2025).)

Can You Live "Separate and Apart" in the Same Home?

Yes. In Illinois, spouses can be considered "separate and apart" even if they share a home, as long as they no longer function as a married couple. That means no longer sharing a bedroom, attending events together, or having a sexual relationship (750 ILCS 5/402 (2025).)

Why Follow the State's Rules on Separation?

While typically it's no one's business what you do behind closed doors, when you file a petition for separation, you're telling the court (under oath) that you're no longer living as a married couple.

If the court discovers that you were untruthful in your request, you risk the judge dismissing your petition, and you'll need to start the process over. Given that legal separations (and divorces) can take up to a year to conclude, this could be a significant setback in your case. (750 ILCS 5/402 (2025).)

What's a Trial Separation?

A trial separation is a period when the spouses live separate from each other to test what it would be like to legally separate (or divorce.) Judges don't oversee trial separations. Spouses are free to create an agreement that resolves issues regarding custody and support, and typically, you can do this verbally.

If you're hoping to get a more formal agreement from your spouse, you can create a written agreement that addresses the terms and conditions of the trial. Although the court won't enforce it, spouses are less likely to ignore the terms if they are in writing.

At the end of the trial, couples either reconcile, file for a legal separation, or ask the court for a divorce.

What's a Separation Agreement?

A separation agreement is a legally binding contract signed by both spouses and approved by a judge at the conclusion of the legal separation process. Illinois law requires the agreement to be in writing; verbal agreements are not valid. A separation agreement should include:

• allocation of parental rights and responsibilities
• visitation for the non-custodial parent
• child support
• property division and distribution of debts, and
• spousal support

Under Illinois law, the court may approve this agreement only if both parties request it and the agreement is not unconscionable. The court cannot divide marital property unless the spouses submit a written agreement. Once approved, the agreement is final and non-modifiable unless both parties agree to changes or the court finds the agreement unconscionable (750 ILCS 5/402(b) (2025).)

Should I Hire an Attorney?

You and your spouse can legally separate without an attorney. especially if you agree on the terms of your separation. But even in simple cases, it's a good idea to understand your legal rights and responsibilities before moving forward.

If you're planning to handle the separation without lawyers, take the time to do a little research. You should review this article on protecting your rights during a legal separation. If you aren't confident in your ability to understand the rules, you should speak to an experienced family law attorney in your area. An attorney can help you understand your legal options, and help you find the best way forward.