What Is Legal Separation in Illinois?
"What is a legal separation in Illinois? It is defined in Illinois as when the husband and wife or either of them live separate or apart from the other from the time of the marriage until the time of entry of a judgment for dissolution of the marriage. With separation in Illinois couples do not get divorced, but rather, they enter into an agreement that allows them to live apart and sets out rules for how to do so.
Couples might choose for legal separation rather than divorce because of religious prohibitions against divorce (if they have that religious belief) and so they do not have to justify their decision to the court or show fault like in a fault based divorce. Divorce in Illinois has been discussed in a different blog post previously so please read that to become acquainted with how things can happen in a divorce setting .
At the same time, for whatever reason, married couples who do not want an irretrievable breakdown of their marriage or a divorce may seek a legal separation in Illinois. Through a court ordered legal separation, the Copyrights involved can live separate and apart from each other while still showing to the court the decision to be legally separated.
A separation agreement is like a divorce agreement in that it has the same agreement language (usually) as the divorce agreement. The difference is that you are showing the court that the parties as individuals do not want to dissolve their marriage at this time. If one party wants to then get a dissolution after showing there is an irretrievable breakdown, they do not need to wait two years and file a joint petition for dissolution of marriage. They just file for a dissolution and it is typically a simple process.
The legal separation agreement must be notarized. You can get it notarized at the clerk’s office in your county."
How Do I Obtain Legal Separation in Illinois?
The filing process for legal separation in Illinois is quite similar to that of divorce, broken into the following steps:
1. Complaint for Legal Separation
As with a divorce case, a legal separation case is initiated by filing a complaint with the Circuit Court. The complaint shall make separate and distinct allegations of the parties’ rights and obligations that exist and shall contain a prayer for relief with regard to each allegation. Moreover, a legal separation complaint must also include specific allegations regarding the living arrangements of the spouses and/or children following the date of filing, or if they have been apart for longer than 90 days, then the appropriate dates must be alleged.
The complaint must be accompanied by a Domestic Relations Information Sheet, which is required by the Circuit Clerk’s office to help identify the equality of the information contained within your divorce filing.
2. Summons
After the Complaint has been filed with the Circuit Clerk’s office, the Summons will then need to be issued. A Summons notifies the other spouse of the legal action. The summons also requires the respondent to respond to the petition and set a first appearance with the Court.
3. Service of Process – having the Complaint Served on the Respondent Spouse
A legal separation case can be initiated by one spouse when they file a petition for separation with the Court. The spouse seeking out the separation will be known as the petitioner, and the other spouse will be known as the respondent. The respondent spouse will then need to be served with a summons in order for a divorce case to proceed.
There are three ways for a respondent spouse to be served a summons:
a. Serve the Respondent Spouse Personally
Personal service is the most common method to accomplish this. A third-party process server, Deputy Sheriff or a Special Process Server can serve the respondent individually to provide a notice of the petition for separation.
b. Serve the Respondent Spouse by Mailing the Summons
If the respondent spouse is willing to sign a Waiver acknowledging that she/he has received a Summons and a copy of the Petition for Legal Separation, then you may accomplish service of process through mailing the Summons to the respondent.
However, be advised that if the petition for legal separation includes a request for Temporary or Immediate Restraining Relief, and if it is requested that restraining orders be placed upon service, then personal service will be the only option.
If you are in a case where there is none of the aforementioned restraining relief requested, then you can simply mail the Summons to the respondent spouse along with a copy of the petition.
If this is accomplished, then a Return of Service must be filed to establish the proof of service. Failure to file the Return of Service may result in the judge dismissing the case altogether.
c. Service by Publication
In cases where the respondent spouse is not found or is currently in hiding and cannot be served personally, then service by publication can be utilized as a method to serve the respondent spouse. This means that a notice will be published once each week for 3 consecutive weeks in a local newspaper to notify the respondent of the legal action.
These publications will state that a petition has been filed on behalf of the petitioner seeking a dissolution of the marriage, and that the respondent spouse is being provided the opportunity to respond to the petition.
The list of courts, along with respective newspapers, that are granted approval to publish legal notices in their published press begins on the Illinois Secretary of State’s website.
The publication notification must be proofed before printing and published for 3 consecutive weeks. The Truth in Lending Rate Table that was superceded by the Truth in Lending Act in July 2010, can be found here.
4. First Appearance
Following the opening stages of the case, the parties will be scheduled for a First Appearance before the Judge. The purpose of this hearing is to work together to identify the needs of each party and their children, and create a plan that will help everyone before proceeding further with the case.
Illinois Legal Separation Requirements
The law in Illinois has a minimum residency requirement in order to qualify for legal separation. For at least the six months preceding the filing of a petition, one of the parties must have resided in the state of Illinois. If there is a minor child of the marriage, the Residency Statute sets up a home state rule. If Illinois is the home state of the child, you must have lived in Illinois for at least six months before you can file. If another state was the home state of the child, you must have lived in Illinois for at least six months and the other parent must no longer reside in the home state. Also, it would be inconvenient for the child and Illinois would be a more appropriate forum for adjudication. A legal separation does not require living apart for a specific amount of time; however, stating a period of separation upon filing the petition is the most common way to show that there are irreconcilable differences and also to begin the division of the marital assets. The period of separation may establish a date for the division of assets and even create a presumption regarding dissipation. The law does set out that the court can attribute periods of separation prior to filing of the legal separation petition to the six months period required. It does not follow that parties must actually separate from each other in order to file for legal separation. Rather, legal separation acknowledges the legal status of married but living apart.
Legal Separation or Divorce in Illinois
Legal separation is another option for Illinois couples who are facing a divorce and are not sure if divorce is the right decision. Legal separation is similar to divorce in that the couple will settle property issues and divorce-related matters, but when all is settled, the couple is still married and there are no new legal obligations imposed on either spouse. This makes separation a good option for couples who have medical insurance through an employer, and does not want to loose out on that benefit.
Like divorce, legal separation involves both parties having their own separate attorneys and going through the process of dividing property, assets, debt and all other marital issues. From a legal standpoint, legal separation is different from divorce only in how it is finalized. In a divorce situation, the marriage is dissolved and both spouses are free to remarry without any limitations. However, in a legal separation, the marriage is not dissolved, so if either spouse tried to remarry without the divorce being finalized, the marriage would be invalid in the eyes of the law.
This is one of the reasons Illinois courts only allow legal separation under certain conditions. In order to obtain a legal separation the couple must establish evidence that the separation will be beneficial for them. Then, the separation may be granted for a period of two years. When the two years are up, the couple must request an extension from the court, with proof of good behavior and a continued desire to stay separated.
If you are unsure if you are ready to divorce your spouse, legal separation may be a good option for you. Understanding your options, and those of the law, is the best way to ensure that you and your spouse understand the entire process from start to finish.
Financial Impact of Legal Separation
In general, many people may choose to legally separate for financial reasons, emotional reasons, or personal reasons. A legal separation in Illinois is a court-governed, legally binding action resulting in an official Separation Agreement whereby the terms of the relationship after separation are detailed in that document, listing each party’s rights and responsibilities. Couples that are legally separated live apart but remain married, allowing them to retain many marital tax benefits as long as they remain legally married.
As with any divorce proceeding, the financial aspects of a legal separation in Illinois involves the matter of spousal support. Spousal support is designed to limit economic misconduct of one spouse and alleviate the financial burden of a family in the process of divorce by dividing net income between spouses. Spousal support is a very complicated area of the law and always requires the expertise of an experienced family law attorney to advise you of your rights regarding potential spousal support.
The amount of spousal support and length of time the spousal support is paid will depend upon the length of the marriage, level of education, the income of the parties, and the needs of a spouse, among other factors. Illinois uses a formula to determine the range of spousal support amounts. For example, if the spouse required maintenance makes 80% of the couple’s combined net income, they should expect the other spouse to receive a spousal support amount equaling no more than 20% of that couple’s total net income. In other words , the spouse receiving maintenance will be expected to keep their share of the marital assets.
However, since spousal support is determined on a case-by-case basis, a spouse requiring maintenance could receive more, depending on a number of different factors. Again, the spousal support agreement can be laid out in the Separation Agreement, or the court can establish an amount based on the circumstances of the couple.
In most cases, all assets are to be divided equally during a divorce proceeding. The `equitable distribution’ of assets refers to the fact that not all assets will be split 50/50. For example, if the couple owes $50,000.00 on a house worth $300,000.00, the house is listed as having equity of $250,000.00. As such, the couple at the time of divorce will receive $125,000.00 apiece for their half toward the asset; however, since $50,000.00 will need to be paid off at the time of sale, the couple will divide the equity in half, leaving each spouse with $100,000.00, not $125,000.00.
There are also other ways the assets can be distributed by the court. For example, if one spouse earns significantly more money than the other, the spouse earning the higher income would receive a smaller portion of the gross assets. Child support and spousal support have also become part of the asset distribution during divorce. Both child support and spousal support payments can be included, or deducted from the overall value of assets obtained in the divorce proceeding.
Custody and Parenting Time During a Legal Separation
A legal separation is a court case filed through the Cook County Domestic Relations Division. In many ways it is similar to a divorce but is a separate and distinct case. The main difference in the two cases, aside from the fact that one is called a legal separation and the other a divorce, is that the legal separation eliminates any 18 or 20 year length if you have minor children involved. In a divorce the children will be considered adults at the age of either 18 or 20, depending on which part of the statute you are looking at; however the separation case does not provide this automatic age limitation.
You can divide your assets and debts in the same way as in a divorce. You can also ask for temporary spousal support and custody of your kids. Even though legal separation is a simple and brief procedure, you can request anything in the separation that you could also request in a divorce.* If you have kids, you have almost certainly a few concerns on how this new legal status may affect your kids.
With a legal separation, you will have to address time shares and parent time with your children. If you were living with your spouse before receiving a separation, you likely had a routine you had established that everyone got used to. Now, since you are no longer together, you will have to find new routines. How you do this depends on how much of a mess the separation itself got and how well you work with your ex.
Just like spouses can create financial agreements between themselves, parents can also work with one another on establishing rules, guidelines, and timeshares for their kids. If you and your spouse used to take care of all the parenting duties together, you might be surprised that you could get along without a hitch.
When you are working on arrangements with your former spouse, make sure that all of the routines you had continue. For example, if your spouse handled all the doctor’s visits, you’ll likely need to set a schedule. If your kids had certain extra curricular activities, consider how you will agree on handling these activities in the future.
There is nothing wrong with working out arrangements with your spouse and moving forward as if nothing ever happened. While some couples get into horrible specialist custody battles, the vast majority go on with their lives after splitting. However, if you and your spouse are unable to move on and work with one another, you will need to handle custody issues differently.
If you and your spouse cannot agree on your marital property you could end up back in court. While this is not generally the best outcome for couples, it is sometimes the only way to accomplish what you really want. In many divorce cases, you and your spouse might have fought over marital property, but in a legal joint custody situation, parents often benefit from cooperating with each other to move forward.
Reconciliation or Divorce: What Happens Next?
Has your separation period been successful and you believe you can permanently reconcile? Or do you want to move on to divorce, which in Illinois is an entirely different avenue altogether? You have choices to make and a few options for how you should proceed. If you and your spouse successfully resolved issues during the separation period, while also having grown closer to one another, then you may elect to reconcile. In this case, no further legal actions are necessary to obtain this result. You may also mutually decide that divorce is the best avenue for moving on from your marriage. In this case, you and your spouse would agree to reconcile your relationship and file for divorce afterwards. Once you file for divorce, you will be granted a hearing date approximately six months later. Illinois offers two options for filing for divorce: fault-based divorce and no-fault divorce. Filing for divorce is a complex task, which requires the knowledge and guidance of a trusted family law attorney. Your lawyer will know all of the laws that apply in your case, as well as whether you qualify for either of the two options to file. A successful separation period will allow you determine if you and your spouse have a chance of reconciling your marriage. If so, you can pursue reconciliation. If not, then you can move on with your divorce proceeding.
Legal Help and Resources
In Illinois, those seeking legal separation usually meet with an experienced family law attorney to draft a written separation agreement. The written separation agreement may address topics as broad as dissolution of property and relocation of children, or it can be a simple agreement that addresses only counselor-assisted co-parent time schedules, for instance. If you are physically separated from your spouse and have determined that your marriage is in need of help, you should speak with an attorney. That attorney can help you understand your options and how to proceed based on your individual situation.
Attorneys can also answer the many questions you may have surrounding legal separation, such as whether your separate property automatically becomes marital property. Other questions can include whether you or your spouse must make spousal support payments during the separation period and whether you can move on with your life and begin dating during the separation . If your separation leads to divorce, which assets will be classified as marital and which will not?
If you have decided to pursue a legal separation, there are so many practical things to know and do that you should spend some time with your attorney, or at least consult with him or her over the phone or online by emailing questions. Getting through a separation is an emotional challenge, and having an attorney to answer questions as they arise can result in information you need to gain a sense of control over the process.
No matter what stage of a separation you are in, seeking out counseling can help you work through the situation. Those who do not wish to seek marriage counseling should still consider individual counseling. Your family law attorney can refer you to a family therapist in your area who can help you learn new coping skills and begin to move forward with your life.