Does Illinois Recognize Legal Separation?

DuPage County legal separation attorneyIs it possible to get legally separated in Illinois? Illinois does allow for legal separation, although it is not necessarily a commonly used process. A legal separation agreement must be filed with the court, and it will state that spouses will live separately from one another, both physically and financially. This is different from physical separation, and it does not legally terminate a couple’s marriage. The spouses will remain married and cannot enter into another marriage without first getting divorced.

If you are contemplating legal separation, we recommend speaking with a knowledgeable Illinois family law attorney who can walk you through the process and discuss the pros and cons.

Legal Separation in Illinois

Legal separation is primarily a technical term and differs from physical separation, which refers to a couple’s decision to live apart. A legal separation agreement can include decisions between spouses regarding a variety of factors, including parenting time, spousal support, parental responsibilities, and child support. The court cannot divide your property unless it is something you specifically request and both spouses have consented to the property division.

Benefits of Legal Separation Versus Divorce

One of the main reasons people opt to file for legal separation as opposed to divorce is because it allows them time to decide if they wish to reconcile. Some people really want to avoid divorce if possible, and a legal separation may give them the time apart they need. Even if they do opt to file for divorce down the line, most of the major issues have likely been negotiated in the legal separation phase, which makes for a smoother and less expensive divorce.

Another reason some couples want to remain married is in order to retain certain benefits. Perhaps there is medical insurance under one spouse, and the other has major health issues where access to medical insurance coverage is important. In these cases, you will want to speak with your insurance provider to ensure that you will still be eligible for coverage under the policy.

Frequently Asked Questions About Legal Separation

Not surprisingly, there are a number of questions people often have about legal separation. Some of these include:

What is the difference between divorce and legal separation?

As stated above, a legal separation does not mean your marriage is legally terminated. Legal separation allows for the potential for reconciliation.

How do you get a legal separation?

You need to be physically separated already when you ask the court for a legal separation. Either spouse can file a petition for legal separation with the court.

Is there a legal requirement to live in Illinois a particular amount of time before getting a legal separation?

The rule is you must live in the state for at least 90 days before you can ask for a legal separation. Only one spouse needs to reside in the state in order to file. However, if your spouse has never lived in Illinois at all, the court will not be able to decide issues like spousal support and child support. In order for the courts to decide child custody, the children must have lived in the state for at least six months.

Where do I file for legal separation?

The easiest place to file is in the county where you resided with your spouse. The next option is to choose the county where you or your spouse now live. If your separation involves a spouse who has never resided in Illinois, you must file your petition in the county where you currently live.

Contact an Illinois Family Law Attorney

If you have questions about legal separation or need assistance with any other family law issues, contact a skilled DuPage County divorce lawyer at Momkus, LLC for assistance. Call our office today at 630-434-0400 to schedule a consultation.


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