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Illinois Legal Separation Versus Divorce

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
June 23, 2020

In this article, we discuss the difference between legal separation and divorce in Illinois and answer the following questions:

  • What is a legal separation?
  • In Illinois, why would someone choose legal separation versus divorce?
  • What are the benefits of legal separation versus divorce?
  • What is a separation agreement?
  • How long does a separation agreement last in the State of Illinois?

What is a legal separation?

A legal separation is an option for married couples who, for whatever reason, no longer wish to be together but don’t want to file for divorce. Typically, the couple should be living separately and apart, but Illinois court understands that not all couples can afford two homes. At least one spouse will need to file the petition to begin the legal separation process. The petition should include relevant information such as the time and place of the marriage, each spouse’s age, occupation, residence, legal date of separation, children of the marriage, the reason for separation, etc. If filing in Illinois, at least one spouse must live in the state. In general, a legal separation is very similar to a divorce, but not final as a divorce. Under a legal separation, the couple remains “married” in the eyes of the law.

In Illinois, Why Would a Couple Choose Legal Separation Versus Divorce?

For many couples, legal separation provides a trial period of separation before the actual divorce. If they are following the rules, it gives the couple a chance to see what being separated really feels like. Other couples might follow a religion that expressly forbids divorce and legal separation is the next best option. Other reasons a couple may choose legal separation versus divorce include:

  • Creating a more stable environment for the children while considering divorce;
  • A desire to avoid the social stigma associated with divorce;
  • Unable to financially afford a divorce; or
  • They just can’t stand being around each other for another second.

What Are the Benefits of Legal Separation Versus Divorce?

Legal separation can be an easier pill to swallow than divorce. If couples know that being around each other only creates conflict they can quickly file legal separation and then have time to fully consider the finality of divorce. Other benefits of legal separation versus divorce include:

  • The couple continuing to maintain their current health insurance situation;
  • The couple doesn’t want to spend the money for a divorce and they don’t care about getting remarried right away;
  • They have children with special needs and don’t want to go through the divorce process, but still want to be separated;
  • The couple remains married in the eyes of the law;
  • The couple can still determine and follow child custody, alimony, etc. agreements.

What is a Separation Agreement?

Similar to a divorce agreement, a separation agreement is a legally binding document that both spouses and the judge sign at the end of the legal separation process. The separation agreement should include the following items:

  • Child support;
  • Property division and distribution of debts and assets;
  • Spousal support (if applicable);
  • A visitation schedule for the non-custodial parent; and
  • Allocation of parental rights and responsibilities.

The separation agreement must be a written document, so an oral agreement in front of the judge is not enough. If either spouse wishes to modify the separation agreement they must petition the court.

How Long Does a Separation Agreement Last In Illinois?

Illinois does not place a limitation on separation agreements. A couple could conceivably be legally separated until one or the other dies. However, individuals in a legal separation cannot get married to another person as that would violate state and federal polygamy law. Technically, under the law, neither spouse can commit adultery while in a legal separation without potential adverse legal complications. Also, in order for a legal separation to move forward, the reasoning listed for a legal separation cannot be adultery, abandonment, leaving the spouse for more than a year, etc.

If the parties eventually decide to get divorced many of the difficult decisions will have already been made during the legal separation and the transition to divorce will be much easier. If you have any questions about divorce or legal separation give us a call at 630-324-6666.

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