What is Legal Separation?

Illinois Legal Separation Explained

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

In this article, we explain legal separation in Illinois, including: what is legal separation?, what is the difference between legal separation and divorce?, and what are the prerequisites for legal separation in Illinois?  We also explain the Illinois legal separation process as well as the benefits of legal separation as compared to divorce.  

What is Legal Separation?

Legal separation is a remedy in Illinois that allows couples to legally resolve financial and parenting issues while living separate and apart without the finality of a divorce.  Legal separation differs from physical separation in which the couple simply lives separately.  In a legal separation, unlike a physical separation, the court enters an order legally binding the parties to the terms of the separation.  

What is the Difference Between Legal Separation and Divorce?

A divorce permanently ends a marriage.  A legal separation allows for the possibility of reconciliation.  During the period of the legal separation the parties may not remarry.  

In a divorce, the court will enter a final order resolving issues such as spousal maintenance, child support, allocation of parenting time and responsibility, and division of assets and liabilities.  

All of these issues may also be resolved in a legal separation, except that there are certain limitations in the court’s ability to divide assets and liabilities.  Unlike a divorce, the parties must be in agreement on the division of assets and liabilities in order for the court to determine this in an order for legal separation.   

If the spouses are unable to reconcile through a legal separation, neither party is prevented from filing for divorce.  Unless the parties’ separation agreement provides for non-modifiable permanent maintenance, the spousal maintenance ordered in the legal separation will not impact any spousal maintenance ordered in a later divorce.  The divorce court will re-examine the issue of spousal maintenance without deferring to the terms of the previous legal separation.

What are the Prerequisites for Legal Separation in Illinois?

In order to file for legal separation in Illinois, at least one of the spouses must have lived in Illinois for a minimum of 90 days and the parties must be living physically apart.  However, if one of the spouses has never lived in Illinois, the court may not be able to decide issues of child support and spousal maintenance.  In order for the court to determine issues surrounding the allocation of parenting time and responsibility in a legal separation, the children must have lived in Illinois for at least 6 months.

The Illinois Legal Separation Process Explained

In order to initiate a legal separation, one of the parties must prepare a verified petition for legal separation and a summons and file both with the Clerk of the Circuit Court of a county in which one of the spouses resides or the county in which the parties last resided together as husband and wife.  

Next, the summons and petition for legal separation must be served upon the other spouse, complying with Illinois rules for personal service.  The summons will include a date for a hearing.  

At the hearing, if everything goes smoothly, the judge will enter an order granting legal separation.  If some issues such as spousal maintenance and child support cannot be decided at the initial hearing date, these issues may be deferred to a later hearing date.  If the parties have prepared a separation agreement, deciding these issues in advance, a second hearing is not likely to be necessary.  

What are the Benefits of Legal Separation as Compared to Divorce?

While divorce is permanent, legal separation may allow the parties time to reconcile and avoid a divorce.  If the parties are unable to reconcile, many of the issues surrounding the divorce are likely to have been worked out in the legal separation process, making the divorce less complex, expensive, and emotionally taxing.

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What is the Difference Between Legal Separation and Divorce?

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