Is legal separation right for you? Call Silberman Law Group at 312-593-0075 to discuss your situation.
What Is Legal Separation in Illinois?
Legal separation is formal separation. To separate legally, couples must get court approval and may opt to deal with issues such as property division and alimony. Since legal separation is not the same as divorce, it leaves the door open for couples to reconcile. That is one reason some couples select it. However, separating legally does mean a person cannot remarry. A divorce is necessary for that.
Length of Legal Separation
Illinois does not impose time limits on legal separation. A separation can be indefinite, but one spouse can choose to file for divorce at any time. The divorce can incorporate aspects of the legal separation, such as custody and asset division matters.
To undo a legal separation in Illinois if reconciliation happens, the spouses can ask the court to dismiss the separation order.
Legal Separation Pros and Cons
The decision between separation vs. divorce in Illinois is not always easy. For one thing, legal separation is reversible. It can give couples time and space to reflect on their situations without the finality of a divorce. Illinois is a no-fault divorce state, which means couples can get divorced without pointing fingers at each other. This lack of blame can also help couples find their way back together after a legal separation, if they want.
Splitting legally may keep spouses eligible for health insurance and other benefits, and offers financial protection. The terms of a legal separation are enforceable and can give people peace of mind.
Spouses cannot remarry, though, which is a disadvantage for some. Legal separation in Illinois can get complicated, too, depending on the situation, and be similar to divorce in that regard. Trying to do it without legal guidance may cause parties to make mistakes that hurt them.
Financial Reasons Couples May Choose Legal Separation
Health insurance is one reason people legally separate instead of divorce. A common scenario has one spouse covered through the other’s employer-provided insurance. Divorce would end that coverage, and new coverage might be unaffordable, difficult, or impossible for the spouse to get. This could be of particular consideration for people dealing with serious or rare health issues.
Retirement may factor into the decision, too. Legal separation in Illinois lets a spouse still qualify for Social Security spousal benefits or pension survivor benefits. This is not necessarily the case with divorce, although a legal separation lawyer can consider the particulars of your situation to clarify.
Couples may need to stay married for the tax advantages. If a major income disparity exists, for example, filing jointly could offer lower tax rates. For this reason, legal separation may appeal to couples where one works, and the other does not.
Legal separation can also protect one spouse from the other’s debt. In addition, couples may opt to legally separate while they wait for a major financial event to occur. This might happen with a business sale or real estate appreciation. This could let them permanently divide their assets later when their finances are better.
Personal Reasons Couples May Choose Legal Separation
There are several reasons that couples might choose to stay married but get a legal separation in Illinois. One is that spouses might not be ready for divorce emotionally or mentally. Legal separation can offer a period of transition to get used to life changes while dealing with child custody or certain financial realities such as spousal maintenance.
Legal separation can also serve as a trial period while spouses decide if they want to reconcile someday. This type of separation offers more structure than an informal separation does, while still preserving marital ties.
No law in Illinois forbids dating others while legally separated. However, dating could affect discussions over the terms of the legal separation or, if it occurs later, a divorce. For instance, one spouse may view the other’s dating partner as unsafe around the children and try to modify custody. It is also possible that a partner could impact issues such as alimony or property division. Dating can also impact either spouse mentally and emotionally.
Religious Reasons Couples May Choose Legal Separation
The greater Chicago area is home to about 9,347 religious organizations and churches. Some of these faiths frown upon divorce. Legal separation may give couples the flexibility to follow their faith while living separate lives. Some faiths also emphasize reconciliation, with legal separation as a way for couples to work on their problems. Divorce may be a last resort in these faiths.
Of course, many couples choose to separate legally for both financial and personal reasons, or financial, personal, and religious reasons.
Legal Separation vs. Informal Separation
Some couples may prefer informal separation when the separation is new, temporary, or experimental. The spouses may also trust each other to follow through on agreements and obligations. Separating informally may also be more attractive in situations without child custody or complex financial matters.
However, formal separation offers protections since the terms are court-enforceable. It lets the spouses protect their assets, debts, and support obligations. Custody arrangements are explicit and enforceable. In the longer term, many informal separations turn into formal separations or divorces.
How Does the Legal Process of Obtaining Legal Separation Work?
You can qualify for a legal separation in Illinois whether you are living with your spouse or living separately. If living under the same roof, however, the both of you need to agree to the separation or have separate sleeping arrangements and lead separate lives. You must have been living in the state for at least 90 days for the court to finalize the separation. If your spouse does not live in the state, the court can grant the legal separation but may not be able to decide on custody or financial matters.
Legal separation laws in Illinois have one spouse filing a court petition in the county where he or she lives. The county where the other spouse lives is the other option. If you live in Glencoe, you probably would file in Cook County.
This petition outlines the reasons for separation. It is fine to say you are incompatible or dealing with irreconcilable differences. It also covers whether you seek relief, such as child custody or spousal support.
The other spouse gets formally served with the documents and can agree to the separation terms or respond with his or her own terms. Mediation or court intervention may help resolve conflicts, as it would in a divorce.
Major issues that arise in legal separations are child custody, child support, property division, and spousal support. The parties can negotiate these between themselves and get court approval, or have the court make decisions. One risk of letting the court decide is that the solution may not appeal to either party or make sense for the couple’s or the family’s dynamics.
For how child custody is determined, the court considers the best interests of the child. The parents can submit their own proposals to the court, or work an agreement out between themselves. The court should approve it as long as it seems fair and to consider what is best for the child.
Legal separation in Illinois may be a situation when you can get alimony even though you remain legally married. Alimony is not granted automatically, though. A spouse must request it, and considerations for the amount and length include the length of the marriage, each spouse’s income, how intertwined the couple’s finances are, and each spouse’s financial needs.
The division of property in legal separation does not become final like it does in a divorce. However, the court can assign asset usage and debt responsibilities. These orders can be modified if circumstances change or if one party files for divorce.
Common-Law Marriages in Glencoe
Legal separation is for couples who are married legally. Common-law couples typically go through different procedures. Illinois does not allow common-law marriages to originate within the state. However, it recognizes such marriages for couples who entered into these unions in states where they are recognized, and later moved to Illinois. If you are in a common-law marriage or think you may be, a lawyer can offer guidance on separation or preserving your rights when terminating a common law marriage.
Legal separation can be a nuanced issue. To decide if it could be right for you, contact us at Silberman Law Group.
