Legal Separation in Illinois

 Posted on June 09, 2014 in Legal Separation

Divorce is an unfortunate fact of life. Couples realize they are no longer compatible and agree to go their separate ways. For some couples, however, whether due to religious, health or financial reasons, divorce is not an option. Yet they are still incompatible and can no longer live together. For these couples, Illinois provides legal separation.

What is Legal Separation?

Legal separation is more than what is commonly referred to as a “trial” separation. In a trial or physical separation, couples live apart while trying to decide if they should get divorced. There is no payment of alimony, no child support or custody agreement, no property division, and the Court is not involved.

With a legal separation, the couple lives apart and remain legally married, but the Court must issue an order granting the legal separation. The couple remains legally married, so they are not free to marry anybody else. However, unlike the trial separation, the Court can make decisions regarding alimony, child support, and child custody; it cannot though make decisions regarding division of marital property unless the couple agrees.

Any property acquired by either spouse following the Court’s order of legal separation is not considered marital property, and is not subject to property division if the couple later decides to divorce. In a trial separation, all property acquired by either spouse is considered marital property or subject to division in a subsequent divorce, no matter how long the physical separation lasted.

Illinois Requirements for Legal Separation

To file for legal separation in Illinois, the couple must have been “living separate and apart” from each other at the time the petition for legal separation was filed. The separation must also have been caused without fault, which would include adultery or abandonment.

For example, if the wife moved out to live with her boyfriend, she could not file for legal separation because she was “at fault” in causing the separation. Her only remedy would be to file for divorce. She would also not have a claim for alimony, since she was at fault in the separation. The husband, however, could file for legal separation and alimony, since he would not be at fault for causing the separation.

Palatine Legal Separation Attorney

If you and your spouse are considering legal separation, you should meet with an experienced family law attorney to discuss whether this is the right option for you. Legal separation also involves complicated issues regarding child custody and support, alimony and division of property. You need a family law attorney experienced in these issues to help you and your spouse reach a fair agreement, or to fight for your rights in court. Serving clients throughout Palatine, Barrington, Arlington Heights, and the northwest suburbs, the Law Office of Nicholas W. Richard, P.C., can help you through this difficult time. Contact the office today to schedule a consultation.