Illinois Legal Separation
Such as a no fault divorce, a legal separation is initiated by filing a Petition for Legal Separation with the clerk of court. This is the first, and sometimes the most difficult step in the separation process. The decision to separate, whether legally or otherwise, is not an easy one to make.
So what exactly is this separation that we hear about but don’t really know much of? Ok, I’ll bite, is legal separation just a ploy to avoid divorce and punishment? The short answer is no. Let’s take a look at what constitutes a legal separation under Illinois law.
According to the Illinois Marriage and Dissolution of Marriage Act, a legal separation is defined simply as: The court may grant a petition for a decree of legal separation.* * *. 510 ILCS 5/501(b) (See [325 ILCS 5/101] (discussing the purpose of this Act, as well as definitions)). Therefore, a legal separation involves petitioning the court to deal with the same questions of divorce, including maintenance, property division, custody, visitation of children, and child support . However, unlike divorce, divorce terminates the marriage.
Under Illinois law, a legal separation and a dissolution of marriage are two completely separate things. Typically, it is the decision of both parties to enter into a legal separation agreement or petition a court to issue a decree of legal separation.
A legal separation is used by couples who have decided to separate but are still not ready to pursue divorce. For example, this may be ideal for parties who desire a divorce but wish to keep their insurance policies.
It is also suitable for couples whose religious denominations do not permit divorce. However, the couples are not required to file the separation petition as a means of avoiding divorce. Rather, they sincerely desire to segregate their lives – incomes, assets, and debts – and are not able to do so without the use of a legal separation agreement.
Weaker Rights and Protections
The legal rights and protections that a legal separation in Illinois offers are minimal when compared to the same issues treated in a divorce. For instance, you could receive alimony, or spousal maintenance, when you file for separate maintenance, but you would have no way to enforce payment of that money in court in the future. In a divorce, not only does the court award maintenance but it requires the payment of it and establishes a penalty for missed payments.
Obtaining the amounts of money due to you actively enforced are just as difficult to come by. It is not unusual for spouses to let their debts accrue on credit cards, or for one party to incur personal loans through a bank or financial institution. In a divorce you can obtain a court order for the payment or reimbursement of funds. A court will not enforce a separation agreement or judgment for joint credit care debts, because the agreement is more about your wish to live apart, rather than directly related to material goods.
You have fewer protections when it comes to property distribution when you are legally separated than you do in a divorce decree. In Illinois, marital property is considered all property acquired after the marriage. Separate property belongs to one spouse or another, including property acquired before the marriage, gifts of property made to one party, inheritances to one party and property agreements before the marriage for premarital assets.
While you may believe that property is considered owned by one party, the court only considers the property to be divided when the parties are officially divorced. While you may have an understanding and agreement with your spouse about how property should be distributed, this is not binding unless finalized by divorce.
One area of disadvantages when it comes to a legal separation is insurance. Insurance policies issued jointly to both of you, or individual health insurance policies held by each person through employment, may be terminated by the other party. If you have children together, you may want to consider insurance. In Illinois, even your child has no guarantees for receiving coverage. The coverage would be a final obligation when one party files for divorce. For these reasons, a divorce may be more beneficial for your family.
The bottom line is that a legal separation is not the same as a divorce. When you do choose to go through the process, you assume more risks than with a more permanent legal action.
Costs and Complications
While separation agreements can be entered into, the process of obtaining a legal separation is complicated and expensive in Illinois. In fact, the age-old process of obtaining a legal separation is a complicated remnant of yesteryear, when divorces were highly frowned upon by virtually everybody. The legal separation process, while it may have relevance in the modern world, is a more complicated process than a divorce, not the other way around.
Obtaining a legal separation requires filing a petition for legal separation with the court – including all of the same pleadings and necessary documents required for a divorce. The courts require hearings on the petition and enter a judgment of legal separation – in the same manner as a divorce. The one large distinction between the two is that the grounds for separation are different.
Getting a legal separation is similar to getting a divorce, except for the following differences: In Illinois, the grounds for legal separation are – essentially – the same as a divorce. The only difference is the place where it is filed (see below) and the absence of requirements for the division of marital assets, since a legal separation does not at the outset divide marital assets. Obtaining a legal separation can be comparably – or sometimes even more expensive – than obtaining a divorce. As stated above, the pleadings are identical to those filed in connection with a divorce, and the hearings and filings are just as extensive. Further, the one advantage of separation over divorce is the fact that you do not have to wait a period of time for a legal separation to obtain an immediate (temporary) order for payments of support pending a judgment, while a divorce does require you to wait at least 90 days prior to receiving same. As stated above, legal separation is only allowed in Illinois in Cook County, fewer counties in the State of Illinois, and at times it is not even allowed in those counties. The Courts have a rarely utilized procedure where a legal separation is allowed in "front of the clerk" of the court; however, almost in all circumstances, a legal separation must be granted in court in front of a judge. Where legal separation is allowed in a county, the petition usually must be brought in the domestic relations division of the court, the same division of the court where divorce proceedings occur. Only in a few extreme circumstances must a legal separation be brought in a different division of the Cook County Circuit Court (namely, the division that handles adoptions cases or guardianship proceedings, if minor children are involved).
Added Emotional and Social Costs
Living apart from your spouse without the finality of a divorce can be particularly challenging when it comes to the social and emotional impacts of a legal separation in Illinois. Many people report that they feel like divorcees in social settings, yet they remain married on paper and often lack the closure that comes with divorce.
Society tends to dictate that a legally separated couple is still a marriage in progress. Friends may not know how to interact with the couple if the marriage comes up in conversation. Family may continue to push them to reconcile, even if they have no desire to do so. Being socially alienated from both friends and family can add stress to an already straining situation.
For some couples, a legal separation can signal some relief from their marital problems. However, this can be a bad sign to friends and family members. People can begin to worry that the couple does not have a serious commitment to their relationship, prompting them to treat the couple as if they are "going to get a divorce anyway."
At the same time, a legal separation may not be permanent, but it costs money to file . If money is tight in your family, you may be forced to financially support a spouse who is no longer carrying their weight on the household bills. This can be especially bad for couples who are simply staying together for the sake of their children.
When spouses are living separately, they may feel guilty about what their decision is doing to their children. Socially, this is much easier to mask than the psychological ramifications. Living apart can create a sense of guilt within one or both spouses, which may be detrimental to their marriage in the long run.
Living apart can also bring out resentment in newly separated spouses. One partner may resent the other for wanting the separation, while the other may grow resentful because they feel like the divorce is their fault. These feelings of resentment can sometimes lead to reconciliation, but more often result in divorce.
Preparing for a separation is difficult enough. Having a legal professional on your side as you navigate this tough time with your spouse can ease some of the stress associated with living apart. A qualified lawyer can guide you through the process of filing for a legal separation and help you understand and express your needs during legal proceedings.
Impact on Future Divorce Cases
You may not think that having been legally separated is a disadvantage when you file for divorce. You would be mistaken. The law does not make a legal separation complicated but it is not the straight path that many believe it to be. Not only does it make divorce a little more complicated because you need to file a Petition for Dissolution of a Marriage and also file a Judgment of Legal Separation, but there can be issues down the line with how everything will play out when you finally do divorce.
It will be likely that you and your spouse have a lot of the marital property divided up and have already agreed to how to manage some other issues, such as child support and visitation. When it comes time to divorce, those agreements may not be enough.
In a Dissolution of Marriage action, you will be required to divide all of your marital property. What this means is that, if you had some of the marital assets agreed to in your Judgment of Legal Separation, it has to be reallocated. It may not be a complex issue and could be as simple as a divorce decree stating, "The parties acknowledge and agree that all estate planning that they have done thus far in their marriage remains intact and fully enforceable."
Child support can also be a potential problem in the future. In Illinois, child support typically lasts until the child reaches the age of 18 or graduates from high school, whichever is later. But those support levels are set mid-way through the month after the separation agreement was finalized; so, you might see a lower amount of support than what is paid or what should be paid up until the date of divorce.
To make matters even more complicated, if your final divorce is filed a year or two later, the child support will once again need to be amended and would cover a totally different period of time. The prevailing thought is that child support should be paid until the child is 18 or graduated from high school, whichever is later. But the amount could be different depending on what the current income is for the parents and could really add up to just more money spent on attorney’s fees and costs.
Legal separation is an option in Illinois. Most people would agree that it is not the cleanest way to dissolve your marriage, however, as long as both parties know what they are getting themselves into, there should not be too many problems.
Other Options Over Legal Separation
Alternatives to Legal Separation in Illinois
In Illinois, alternatives to legal separation include a trial separation or counseling. A trial separation is similar to legal separation but done informally between two people living together. However, there is no court order in regards to a trial separation so a trial separation relationship can more easily turn into a reconciliation, or one party may be less invested in making the relationship work, especially with regard to things like marital property division.
A trial separation can also lead to a divorce proceeding when one spouse moves forward with a petition for dissolution of marriage to make the separation legal . In Illinois, trial separations are rarely used as a means to reconcile a relationship and more often lead directly to a divorce proceeding.
A more common alternative to legal separation in Illinois is counseling, which is another way to work out some of the problems in a relationship. But sometimes counseling makes things worse when one party doesn’t believe in the process.
On the other hand, both a trial separation and counseling allow some potential for successful reconciliation. However, they do not hold the terms of a legal separation in Illinois because these alternatives do not usually include legal protections for either party related to the division of property, child custody or child support.