When a marriage breaks down, many couples opt to file for divorce. However, what if you want something less permanent? Another option is to file for legal separation in Illinois.
Under a legal separation in Illinois, you are still legally married to your spouse but living apart. Your separation agreement can dictate child support and custody if you have children.
If you are considering taking the step of becoming legally separated from your spouse in Illinois, this article can help you understand the basics of the law, and the next steps to take.
Keep in mind however that this information is not a substitute for speaking with a qualified attorney about the specifics of your case. At Vantage Group Legal we offer free family law consultations. We invite you to contact us anytime to schedule a time to speak about your goals.
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What Is a Legal Separation in Illinois?
When couples opt for a legal separation instead of a divorce, they remain legally married but do not reside together. Neither spouse can marry someone else unless they file for divorce first. Legal separation means the court issues a legal judgment confirming the new separation status.
Legal separation differs from simply choosing to live separately. Do you have children? If so, the court can rule on child custody matters and child support with a legal separation. If one spouse needs financial assistance to support a legal separation, the court could also award spousal support. Moving out and being physically separated, without filing for a legal separation, lacks court involvement and any potential financial support orders or custody agreement.
How is Legal Separation Different from Getting a Divorce?
There are some similarities between legal separation and divorce but some important differences. Legal separation and divorce can both address issues such as child custody, child support, and alimony.
However, a legal separation does not address the division of marital assets or the allocation of debts. Another difference is the inability to remarry with a legal separation. If you find a new partner and want to get married, you must go through the formal divorce process first.
The best way to summarize the differences is that a legal separation can be temporary, whereas a divorce is permanent.
Why Choose a Legal Separation in Illinois?
You might wonder why a couple chooses legal separation over filing for divorce. Every couple is unique, and their situation won’t be like anyone else’s. Deciding on legal separation over divorce is a personal choice. However, there are some common reasons people find separation more desirable than divorce. Couples might choose separation over divorce because someone:
- Needs some time apart, and reconciliation is a future possibility;
- Wants to explore separation on a trial run;
- Has religious or cultural beliefs that keep them from filing for divorce;
- Prefers to avoid the social stigma associated with divorce;
- Needs to retain benefits that come with marriage, such as retirement benefits or health insurance; or
- Believes a legal separation will provide a more stable environment for the children before filing for divorce.
Some couples might own businesses together, have amassed significant assets, or are dealing with serious health issues. Any of these issues might make filing for divorce even more complicated.
Military spouses have unique concerns that could make the separation route more desirable at first. For example, military spouses with ten or more years of marriage have benefits under the Uniformed Services Former Spouse Protection Act. In this situation, a couple may want to postpone divorce until they reach the ten-year threshold.
There’s also a potential tax benefit for staying married. Couples who file joint taxes could save money by filing for legal separation instead of a divorce. The rule is that you can file taxes jointly, provided you were still legally married as of December 31st of that tax year.
Your reason for wanting to file a legal separation doesn’t have to be one of the ones listed here. There is no right or wrong reason per se; it’s what is best for your family situation.
Requirements for Legal Separation in Illinois
One spouse must file the petition to start the legal separation process in Illinois. However, there are legal requirements that you must meet before the case can move forward.
The first requirement is that one of you currently lives in Illinois for a minimum of 90 days before filing. If one spouse has never lived in Illinois, the court may not be able to decide custody matters. The court must have home-state jurisdiction, which means the child must have lived in Illinois for at least six consecutive months or since birth if the child is under six months old.
The second requirement is that you and your spouse must be living apart before you file the petition for legal separation.
You must file the petition in the appropriate court; otherwise, the court will dismiss the case. You must choose the county where:
- Your spouse resides;
- You and your spouse last lived together as a married couple; or
- You reside if your spouse cannot be located in Illinois.
The court does want to know why you are filing a request for a legal separation. Couples can try to work out the details of the separation agreement on their own, including child support, child custody, and spousal support. Once everything is filed and entered by the court, the petition and a summons are served to the responding spouse.
The court will examine your separation agreement to determine whether it’s fair and reasonable to both parties. Once the court approves a separation agreement, it is legally binding. The separation agreement could be very detailed and complex, depending on your situation.
Contact Vantage Group Legal Services
If you need assistance filing a petition for legal separation in Illinois, Vantage Group Legal Services can help. Our affordable legal subscription services provide legal representation when you need it most. Contact us today to schedule a no-pressure consultation to learn more. Protect your rights by speaking with an attorney before starting the legal separation process.