What is Legal Separation in Illinois
A vital concept to understand when dealing with separation under Illinois law is the difference between legal separation and just being separated in a marital sense. Marital separation in Illinois is a recognized concept between two spouses living in the same residence. Technically, this means you could be "legally" separated from a spouse if you are still living under the same roof. A legal separation is different in that it is obtained when a couple goes to Court and requests a Judgment For Dissolution of Marriage, but for whatever reason do not enter an actual Judgment For Dissolution of Marriage.
A legal separation may make sense to a couple under any number of circumstances. Perhaps there is a religious component to separation where a couple does not wish to be divorced , but the marriage has definitely broken down. Perhaps spouses need a set period of time apart for more to reflect on their relationship. Or perhaps there are financial components in a divorce where spouses do not want a period of time to run during which they cannot divide assets and debts.
There are many factors to consider regarding legal separation in the context of divorce. An important issue for Illinois residents is the fact that you must actually have an action for legal separation filed with the Court. Hence, living apart without a legal separation Agreement or Judgment does not exempt a couple from dividing up marital assets or finding a way to deal with the other spouse.
Steps to Filing for Legal Separation
Once the decision to legally separate has been reached, the next step is filing a Petition for Legal Separation with the appropriate court. In Illinois, there are family courts present in each county. Thus, the first thing you will want to do is find out where the family court is located for your county. Unless you and your spouse have lived in different counties for at least 3 months prior to filing, you will use the county in which you reside. Once you have found the family court in your county, you will need to go to that court and obtain two forms: the Petition for Legal Separation and a Summons. These forms can be found in the court clerk’s office. You will also want to obtain a Certificate of Dissolution or Void Marriage, as well as a Certificate of Affidavit of Civil Union, if applicable. It is important to note that filing these forms is only necessary if you are seeking legal separation from a civil union. The Petition for Legal Separation puts the courts on notice that you wish to separate from your spouse. In Illinois, the legal separation does not ascribe any fault to either party, so an explanation as to why you are seeking a legal separation is not necessary. Forms for obtaining a legal separation may also be found online. The Summons gives your spouse formal notification that you have filed for legal separation. It also dictates where your spouse should file his or her response. This form must be filed with the local family court as well. Legal separation can have a significant impact on a person’s financial circumstances. Due to this, it is strongly recommended that you hire a qualified lawyer who can ensure that your legal separation works in your favor.
Requirements for Legal Separation
To be eligible to file for legal separation in Illinois, certain requirements must be satisfied. One important requirement is the residency requirement. The State of Illinois requires that at least one spouse must be a current resident of the State of Illinois and properly allege that he or she has lived in Illinois for the prior 90 days in order to file for legal separation in the State of Illinois.
In addition to the residency requirement, the parties must be either legally married or in a civil union. Neither party must currently reside in a county which is found to be within an Indian country or a federally recognized reservation. The person who will be filing the Petition for Legal Separation must wait at least 6 months from the date of the marriage to file. Additionally, legal separation can only be approved if it is for irreconcilable differences.
This means that you have lived separate and apart from your spouse for 6 months or more prior to filing the Petition for Legal Separation and that there is no reasonable likelihood that the marriage can be preserved. The Court may only grant a legal separation if it finds that the parties have lived separate and apart for 6 months due to irreconcilable differences.
Physical and Legal Obligations While Separated
During the period of legal separation, both spouses have certain rights and responsibilities that must be adhered to.
Children
If the spouses have children, any agreement or judgment may award either a parent the right to custody and determination of the child’s principal residence. Child support must also be considered and is generally set at the same level as during a divorce. No visitation rights can be affected without written consent of both parents, or a court order, unless the child resides with one parent, and the other parent simply has not been allowed to see the child for a period of 60 days. Providing and maintaining health care for the child remains necessary.
Spousal Support
The Illinois Marriage and Dissolution of Marriage Act [IMDMA] Section 14-202 governs maintenance or spousal support in the event of a legal separation. If the court orders maintenance, it will be similar in look, at least, to that of a divorce order for maintenance. Spousal support in Illinois does not impact the division of property without a marital settlement agreement and an action to apportion property. Alimony, or spousal maintenance, is based on the incomes available to each spouse, which may lead a court to award one or the other of the spouses a sum of money in addition to their share of the marital estate. It is important to note that either party may claim maintenance as income for taxation purposes, or deduct it as an expense.
Division of Property
The court may consider and divide property in a similar manner as during a divorce. In a legal separation the court may apportion assets and debts when awarding maintenance for up to thirty months, when deemed appropriate under 14-202. Unless the court finds that a spouse is dissipating assets, either divorces or sells them during separation proceedings, the spouse will be entitled to the same rights of an equitable apportionment during a divorce.
Advantages and Disadvantages of Legal Separation
Many people wonder whether a legal separation could be better than a divorce. There are both advantages and disadvantages to legal separation, so let’s go over the pros and cons:
Pros to Legal Separation
It’s usually easier: Since a legal separation is not a divorce, one spouse will not be able to put the other spouse out of the home if he or she does not want to go. When the court will not issue an order of possession before a divorce is finalized, legal separation can be a logical next step.
It avoids some of the problems inherent in a divorce: Because a divorce action is a break-up action, many people are put at a disadvantage as soon as the action is filed. It’s usually better for both parties if there is a clear focus on resolution when starting a divorce case, rather than navigation through the dangerous shoals of hurt feelings . A legal separation can keep people out of the trenches for a time. While you could be charged with desertion (grounds for divorce) during the separation period, desertion charges are more rare.
Cons to Legal Separation
It doesn’t require resolution: Many people who are thinking of dissolving their marriage are interested in going straight to the end, but a legal separation can sometimes be a stepping-stone that veers off in a completely different direction. The goal of a legal separation is to be reconciliated, but that can never be assured.
It costs money: Going to court over a separation isn’t free. You’ll have to pay fees for a lawyer, a court reporter, and other costs, plus you’ll need to pay whatever you owe for your legal separation. If you’re planning on proceeding with a divorce action anyway, you might consider skipping the separation entirely in order to spend your money more wisely.
Converting Legal Separation into a Divorce
Depending on the state of the relationship, a legal separation in Illinois may be followed by a couple’s decision to divorce. A couple may choose divorce over legal separation for any number of reasons: children are grown, relationship status has changed, and so forth.
A divorce and legal separation in Illinois are very similar in many ways. For example, a couple can divide their property and debt during a legal separation, which is also a major step in a divorce. It’s essential that you divide all property, debt, and assets before moving forward with conversion.
It’s important to note that because a legal separation is a legal process, the court must approve of any agreements made during this time. The default in Illinois is that parents may share physical custody of minors during a legal separation. If both parents agree and make the appropriate arrangements, they can continue to share custody after converting to divorce.
Once a couple has been legally separated for six months in Illinois, any spouse may file an action with a qualified Illinois family law attorney. Filing should be done in the county where one person maintains residency. In these circumstances, the respondent will not need to be served with papers (unlike traditional divorce). Instead, the couple will have a hearing approximately 90 days later and will upon approval be divorced.
If a couple chooses to get divorced, it is advisable that they first speak with their attorney to discuss whether or not they should move forward with the process. Couples may have various reasons for needing to convert a legal separation into divorce, but all will agree this should be an attorney-assisted action.
Consulting with Attorneys on Separation
Legal separation is about providing a new option to married couples who are facing the ending of their union but who may not want to take that step yet. This may be for religious or personal reasons. It is not the same as divorce, where the marriage is considered legally ended in civil terms. With legal separation, the couple remains legally married but has answers to many questions without going through a lengthy and expensive divorce.
An Illinois legal separation can include child custody, child support, and child visitation and can address spousal maintenance. In fact, it can address all the issues that will be raised in a divorce proceeding, essentially the same things will be part of a divorce settlement.
You may decide to be separated for a short time because there are unresolved issues that need to be settled. Or the separation may go on for a long period of time, or even until one spouse dies.
If you are considering a legal separation, it is still in your best interest to consider working with an attorney skilled in this area. You may feel you are ready to take the step into separation and think you can work things out with your spouse, and therefore don’t need an attorney. Unfortunately, that can lead to major problems down the line.
Having an experienced lawyer on your side to help you navigate the legal process of separation is important. That lawyer will ensure you have answers to your questions, will remind you to take steps you may have overlooked, and will work to protect your rights throughout the process.
Going through a legal separation may help you and your spouse work on your differences so that you can reunite. If the separation doesn’t result in a reconciliation, it will have helped you already get through some of the process of divorce, so that the proceedings aren’t as drawn-out and painful .
Your attorney will walk you through the process of your legal separation. He or she will:
Your spouse may never ask for a formal separation. Going through a legal separation can ensure that assets are protected. It can help you obtain a court order regarding child custody, which can benefit you regarding custody issues should you eventually seek a divorce. Additionally, the court order can help if your spouse refuses to pay child support after you separate.
Separating from your spouse should be done legally so that if you need to get back together, just like an annulment, it can often be like nothing ever happened, and the terms of the separation can end when you decide to reunite.
Not everyone in Illinois can legally separate from their spouse. Under Illinois law, in order to legally separate, you or your spouse must have been a resident of Illinois for at least 90 days. Additionally, if you believe you will want to reconcile later, the Illinois Separation Agreement has to include a provision that you intend to live separately for a time period and then reconvene your marriage.
In addition, Illinois courts only allow separation for reasons of irreconcilable differences. It could be that one of you has been unfaithful, but does not want to pursue divorce right now. The legal separation will put provisions in place to address maintenance and visitation, and possibly property division.
The separation agreement will have no long-term effect on the amount of exhibit division that will be made through divorce. However, during the time of the separation, the agreement will remain in effect and can be enforced by either spouse if the other tries to violate its terms.