If you and your spouse are living separate and apart, but you aren't sure that divorce is the right legal path for your family, there may be an alternative available to you in Illinois.
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How Is Legal Separation Different Than Divorce?
Illinois divorce and legal separation are alike in that both processes start when one spouse files a formal request (petition) with the court asking for intervention. The similarities continue in that both allow the couple or the court to resolve outstanding issues, like child custody, support, and property division.
The critical difference between legal separation and divorce is that at the end of a divorce, the judge terminates the marriage and both parties are free to remarry. Legal separation doesn't dissolve the relationship, so even though you're living apart and carrying on with your separate lives, neither spouse can remarry unless the court converts the separation into a formal divorce.
Unlike divorce, which is permanent, legal separation leaves the parties in limbo of being married, but not living together and is almost always temporary. Couples typically choose to divorce, but in families where reconciliation is possible, either spouse can ask the court to vacate (end) the separation order and resume marriage.
Why Choose Separation Instead of Divorce?
Marriage is a personal and intimate relationship, and there's no right or wrong way to navigate it. Legal separation is uncommon, but for a couple unsure of whether it's time to divorce, it might be the best option. Separation may also be useful in cases where the couple practices a religion that expressly prohibits divorce. In other families, spouses share health insurance (that would typically terminate after divorce) or are close to cashing in on valuable tax or other federal benefits (like social security.)
Other common reasons to choose separation instead of divorce may include:
- using separation as a trial run for a divorce
- creating a stable environment for the children while navigating the possibility of divorce, or
- avoiding the social stigma that comes with divorce.
What Does Separation Mean in Illinois?
In Illinois, legal separation (sometimes called separate maintenance) is available to couples who are living separate and apart from each other. To start the process, at least one spouse will need to file a petition for separation. The request must include relevant information, including each spouse's age, occupation, residence, the date of the marriage, the date of separation, and whether there are children of the marriage. Additionally, you'll need to demonstrate that at least one spouse lives in Illinois at the time you file your petition.
Like divorce, you'll need to provide the court with a legal reason, or grounds, for your request. Illinois law used to require the filing party to prove the spouse left without cause, but that law changed in 2016. Now, if you'd like a legal separation, you'll need to tell the court that either both spouses agree to the petition, or that one person moved and you're now living separate and apart.
The couple can negotiate the terms of the separation, including how to divide marital property and debts, child custody, child support, and spousal support. Both parties are bound by the court order once the judge signs it.
Some states give couples a time limit for separation, but that's not true in Illinois. Parties can continue the legal separation indefinitely, or, if either spouse would like to terminate the marriage, that spouse can file for divorce any time after the court finalizes the separation.
Is It Still Living Separate and Apart If We Reside in the Same Home?
Yes. In Illinois, the court understands that it's not always possible for a couple to afford two homes. Living "separate and apart" means that you've stopped living as a typical married couple, you aren't sleeping in the same bed, attending social events together, sharing meals, or cohabitating (having sexual relations.)
Why Is It Important to 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.
What's a Trial Separation?
A trial separation is a period when the spouses live separate from each other to allow each the opportunity to discover what it would be like to legally separate (or divorced.) The court doesn't order or monitor trials, so the couples 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 will 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 that both spouses (and the judge) sign at the end of the legal process. Illinois law requires the couple to list the terms of their agreement in a written document, so a verbal contract isn't enough. The agreement should include the following essential information:
- allocation of parental rights and responsibilities
- visitation for the non-custodial parent
- child support
- property division and distribution of debts, and
- spousal support.
The separation agreement is a court order, so if either spouse wishes to modify it, that spouse will need to get approval from the other spouse or the court.
Should I Hire an Attorney?
Maybe. The laws that govern legal separation are always changing, and they are complicated. If you aren't confident in your ability to understand or interpret the rules, you should hire an experienced family law attorney in your area.