In Illinois, Legal Separations are authorized by Section 402 of the Illinois Marriage and Dissolution of Marriage Act 750 ILCS 5/402. Being “Legally Separated” has a very different meaning than when spouses simply agree to “split-up” and live apart. Informally splitting up doesn’t require a legal separation or divorce.
Legal Separations are much more involved than just physically separating, and are quite similar to going through a divorce. Formal papers are filed in court, court appearances are typically required, and unless you and your spouse agree on all of the terms of your legal separation, hearings must be held before the judge.
The result of a Legal Separation is a Judgment of Legal Separation. The Judgment of Legal Separation typically incorporates a Legal Separation Agreement in which the spouses agree on certain terms governing their separation, such as spousal support and child custody. However, a Judgment of Legal Separation is very different than a Judgment of Dissolution of Marriage in that you are still married.
Obtaining a Legal Separation can be time-consuming and expensive. Often, Legal Separations frequently end in divorce, as a Judgment of Legal Separation does not preclude either spouse from thereafter filing for divorce. When divorce results, many of the legal costs are duplicated. This duplication of legal expenses and the frequency of divorces following legal separations are reasons why Legal Separations are almost never used in Illinois.
Even given the potential of duplicating legal expenses and the frequency of divorces following Legal Separations, there are still times when Legal Separations may prove the right choice for a couple. The most recognized reason for seeking a Legal Separation is for religious purposes, when a couple’s religion forbids or otherwise condemns divorce.
There are other less recognized reasons why Legal Separations may make sense in certain situations, including: (i) possible income tax benefits for the spouse paying spousal support during the legal separation, (ii) limiting your liability for debts incurred by your spouse during the separation, (iii) making sure health care benefits are maintained, (iv) obtaining spousal support, (v) determining child custody, and (vi) agreeing to be able to continue to use certain lines of credit.
If you are considering a divorce or legal separation, you should obtain competent legal representation. Legal Separation Agreements must be well thought through and detailed as such agreements can frequently become the basis for subsequent divorce terms.
The Legal Separation Process can be as complex as getting a divorce. Whether for religious or other reasons if you think a Legal Separation may be the right choice for you, we can help. I will explain to you the aspects involved in both legal separations and a divorce so that you can make an informed decision as to which course is the best for you. Please call me for a free 30 minute consultation so that I can learn about your case.