A legal separation agreement allows couples to stay married while resolving most types of issues that commonly occur during the breakdown of a marriage. A private agreement to separate between two married spouses is different from a legal separation. A legal separation and the accompanying legal agreement may be beneficial for couples who need guidance on how to apportion their affairs and property during time apart, but are not yet ready to take the plunge of going through a legal divorce. This legal separation process can also be beneficial for practical or financial reasons, such as when one spouse wants to stay on the other spouse’s health insurance plan or when one spouse wants to continue reaping the tax benefits of filing jointly as a married household.
Legal Separation Process
The process of planning for legal separation should be similar to planning for divorce. A married person must file for legal separation in the Circuit Court where she lives or where the couple resided. The filing party must be an Illinois resident for at least six months at the time of the filing. Unlike during Illinois divorce, married couples must be living apart at the time one party files for legal separation. In the court form requesting legal separation, the filing party must attest to the fact that he or she did not cause the marital breakdown. Around the time a party files for separation, both spouses can work with attorneys to draft a legal separation agreement. Once both parties consent to terms of the agreement, the judge will review the document, typically during a hearing. If approved, the judge will authorize it as a legally-binding court order.
Considering the Legal Separation Process
A disadvantage of the legal separation process is that the process can be costly and time consuming, much like a divorce proceeding. Another issue in a separation is that some spouses minimize the significance of a separation agreement (often unconsciously) and may be more likely to give up marital property or parental rights, such as rights to a certain amount of child care and visitation, believing that the agreement will only be temporary. In reality, terms of a legal separation agreement last indefinitely or until they are modified.
Though a legal separation agreement does not directly lead to a binding divorce settlement agreement should the couple eventually choose to divorce, if couples are unable to agree to a divorce settlement, a family law judge may look at the legal separation agreement for guidance and rule in accordance with it. This may be particularly common when the judge does not want to disturb an adequately functioning status quo when it comes to child custody, residency, and visitation issues.
As a matter of practicality, many couples choose to have a legal settlement agreement converted to a divorce settlement to avoid additional time and expense. It is also important for litigants to know that if they are required to attend a hearing before a family law judge on any substantive matter relating to their marital separation, such as how real property is to be divided, the court’s decision in this matter will remain effective during divorce proceedings.
If you are considering a legal separation, we encourage you to contact us at Kathryn L. Harry & Associates, P.C. We are well-versed in nuances of the divorce and legal separation processes and are committed to helping your case move along as smoothly and efficiently as possible. Please contact our DuPage County legal separation attorneys at (877) 889-4515 to learn more about how we can help you through the legal separation process or any other family law issue in Illinois.