Legal Separation

A legal separation is an alternative to divorce, but it’s not available in all states. It is available in Illinois.

While quite similar to a divorce, it has some important distinctions. First, the marriage still legally exists in a legal separation, so neither party can get remarried. For the same reason, if one party dies while the couple is still only legally separated, the surviving party retains all the legal rights to inherit property as any other surviving spouse would, regardless of the financial support arrangements made as part of the separation agreement.

This type of separation shouldn’t be confused with physical separation, which is usually a condition of getting divorced. Physical separation simply means the two people are living in physically separate homes. Living apart is also a condition of legally separating, but it doesn’t qualify as legally separated on its own. As with a divorce, a legal petition asking the court to declare a couple legally separated is required.

Similarities to Divorce

Once a petition has been filed, the court will address many of the same issues as in a divorce proceeding. The court will issue a binding order regarding child support and custody issues as well any maintenance if one spouse is entitled. If the couple agrees, the court will also issue an order regarding the separation of their assets – although this isn’t required.

Reasons to Prefer Legal Separation to Divorce

One might wonder why couples wouldn’t just get divorced since the legal process, especially sorting out the thorny issues of child custody and financial arrangements, is much the same. There are various reasons why a couple might prefer not to divorce.

Certain religious traditions don’t permit divorce. This way, a religiously observant couple can make the necessary personal and financial breaks without violating their religious beliefs.
In some cases, one who expects to divorce eventually might find legally separating first financially beneficial as it would end the time frame of creating joint marital property as early as possible.
In states like Illinois that require grounds for divorce, legally separating only requires that the one filing for the separation isn’t the one who caused the break up.

Filing Process in Illinois

As noted above, the person filing for the separation can’t be found to be the one who caused the end of the relationship. However, it’s not necessary that the filer be entirely blameless.

The one filing must be a resident of Illinois for at least 90 days before making the filing. The other spouse doesn’t need to have lived in Illinois at all. However, if an Illinois court is to rule on child custody issues, it does require that the children have resided in Illinois for at least six months.

Once a separation petition is filed, the court will serve notice on the spouse. If both people agree to the facts of the separation and agreements regarding children and financial arrangements, then the separation is considered uncontested. However, if there are disputes regarding any of these issues, the negotiation and court process to resolve them is the same as if it were a divorce proceeding.