The differences between legal separation and divorce are frequently misunderstood in family law. There are areas where the two overlap, but they are not the same legal procedure under Illinois law, and they do not grant the same rights. However, there are circumstances where legal separation can smooth the way to divorce or help couples take the time they need to improve their marriage. Here is what you need to know if you are considering a legal separation.
Legal Separation Explained
A legal separation is a court decree stating that a couple will live apart. It does not end the marriage but sets forth child visitation (now known as parenting time), support obligations, and agreed property division during the separation.
Before the separation is filed, the couple must already live apart. After the petition is filed with the court, the process is very similar to divorce in that the attorneys will help you identify assets, liabilities, and incomes through the process of Discovery in accordance with Illinois Supreme Court Rules. An attorney will provide assistance in negotiating a fair and equitable agreement as to maintenance, child support, and the division of assets and liabilities. A settlement agreement is then reduced to writing, and, after it is signed by both parties, it will be incorporated into a Judgment for Legal Separation. If the parties cannot agree to all aspects of the their financial matters, a hearing or trial may be held during which the Judge will decide the amount of support that one party must pay to the other. Unlike in a divorce, a Court may not decide the allocation of property or debt. The Court can only approve an allocation that is agreed upon by the parties.
Divorce vs. Legal Separation, Practically Speaking
The parties remain married even after a legal separation is finalized. This means that neither spouse may remarry without committing the criminal act of bigamy. If you think you will remarry, you may want to consider pursuing a divorce, not a legal separation.
Quick Tip: Know how the length of your marriage may play a role
in your future finances before deciding whether to seek a
divorce or legal separation.
As of January 1, 2015, statutory guidelines for maintenance were established. Anyone who has been married for 20 years or more may be eligible for “permanent” maintenance or support from his/her spouse. If you are close to the 20 year mark in your marriage, but need to live separate and apart from your spouse for any reason, it may be in your best interest to delay a divorce by obtaining a legal separation first. Then, after reaching the 20 year mark in your marriage, you could seek a divorce, thereby preserving your “right” to request permanent maintenance.
A legal separation does not change your marital status for purposes of applying for and claiming social security benefits. Even if you have never worked, under Social Security laws, you may be eligible for spousal retirement benefits if you are at least 62 years of age and your spouse is receiving retirement or disability benefits. You can also qualify for Medicare at age 65.
Alternatively, if you are divorced and entitled to receive Social Security retirement benefits, you may receive benefits based upon your work history or the work history of your ex-spouse, if you meet certain criteria. Your marriage must have lasted 10 years or longer, and your ex-spouse must be age 62 or older. You may elect to receive benefits based upon your ex-spouse’s work record if the benefits you would receive under your work record are less than that of your ex-spouse. However, if your ex-spouse has not applied for retirement benefits, even though you qualify for them, you can still receive benefits on his or her record if you have been divorced for at least two years. Accordingly, it may be in your best interest to divorce sooner rather than later in certain circumstances. Note, your election to receive benefits based upon your ex-spouse’s work record will not affect your ex-spouse’s eligibility or right to receive benefits.
A legal separation may prevent you from taking advantage of a health insurance subsidy under federal law. Health insurance subsidies are a relatively recent benefit brought about by the new health insurance laws commonly known as Obamacare. Legally separated individuals find that eligibility for these subsidies is based upon the income of both spouses rather than just the income of the one spouse applying for insurance. This may cause you to be ineligible for health insurance subsidies, and therefore, divorce may be a more attractive option.
There are many reasons, legal and personal, why couples may prefer a separation over a divorce. Religious objections regarding divorce or the hope that the marriage can heal with some away-time are two sentimental reasons. It is not unusual for a couple to require a “time out” to work through issues in the marriage.
Less emotional reasons tend to arise from the need to protect property and support interests. A physical separation with no court orders involved may give the parties the much needed physical separation; however, it will not guarantee receipt of child support or maintenance. If one party really needs that support to live on, relying on an honor system may lead to impoverishment; whereas, a court order ensures that if the support payments aren’t paid, the recipient spouse has a legal remedy. There are other protections as well: Debt incurred after a separation is considered the individual party’s responsibility rather than a joint responsibility. Property purchased after the separation also remains the property of the party who purchased it even if the parties later divorce.
Moving On To Divorce
Legal separation is about options. The arrangement can continue indefinitely, or the parties may later seek a divorce. At any time, the parties may file a Petition for Dissolution of Marriage. Assuming the parties have met the legal requirements to divorce in Illinois, the Court may enter a divorce judgment. However, any property agreement entered in the legal separation is non-modifiable. But, absent an agreement in the legal separation that calls for permanent and non-modifiable maintenance, all issues of temporary and permanent maintenance are re-decided in the divorce case.
Family law matters are complex, and it is best that you do not navigate them alone—especially if you have children or if one party’s income is substantially higher than the other party’s income. The same is true if you own substantial assets or if there is a situation involving abuse which makes living with your spouse impossible. Fill out our contact form or call (877) 889-4515 today for more information.