What Is Considered a Legal Separation?

 Posted on April 17, 2014 in Divorce

When a couple contemplates divorce, often times they wonder about a legal separation as an alternative. A legal separation, as provided for in Section 402 of the Illinois Marriage and Dissolution of Marriage Act, gives the couple the opportunity to live apart as if the marriage were over even though legally it is not. Sometimes couples consider a legal separation to test the waters, leaving open the possibility of reconciliation, and others do so because of religious beliefs. But, there may be other reasons to consider a Legal Separation as opposed to a divorce.

Why a Legal Separation?

A legal separation does not legally end the marriage like a divorce does. Therefore, neither party is free to remarry after a Judgment for Legal Separation.

In some circumstances, the decision to legally separate may be mutual. In other circumstances, one spouse may petition the court for a legal separation despite the other party's wishes. In a separation, just as in a divorce, the parties must agree or the court will determine an appropriate level of spousal support or maintenance, as it is referred to in Illinois, as well as child support, where applicable.

Typically, a division of assets or property will not occur as it does in a divorce, except for cases where the parties agree to divide property and enter into a binding legal separation agreement.

A legal separation is not an official first step to a divorce. Couples may remain legally separated for the rest of their lives and never divorce. But, all property acquired after the entry of the Judgment for Legal Separation by either party is non-marital. This factor might make a legal separation very attractive to a party who does not otherwise have fault grounds for divorce and whose spouse will not otherwise cooperate in a six-month no-fault action. He or she may wish to obtain a judgment of legal separation until the parties have been separated the requisite two years for a no-fault divorce.

What Does It Include?

Terms of the separation will typically include spousal maintenance and child support terms. A legal separation agreement or order may also include terms on the duration of the separation, as well as acceptable frequency and duration of contact between the spouses or the non-custodial spouse and the children. It may also include items related to certain decision making for the kids.

How Does a Couple Qualify?

A petitioner for legal separation is not required to cite any particular fault. In seeking court approval, the couple must be physically living apart when the request is made, or separation must be imminent, and the requesting spouse must have lived in Illinois for at least 90 days prior to the entry of the Judgment for Legal Separation. Illinois courts will recognize a legal separation for couples living in separate states, although may not be able to enforce terms regarding spousal support or child support. An action for legal separation must be filed in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife or in which the petitioner resides if the respondent cannot be found within the state.

Can I Be Accused of Abandonment?

"Abandonment" is one ground under Illinois law that may be used to obtain a fault-based divorce. If one spouse has physically lived apart from the other continuously for at least one year, that spouse may be considered to have abandoned the other, and may be sued for divorce on those grounds. In a legal separation, however, neither spouse is considered to have abandoned the other because they have either agreed to this arrangement, or the court has mandated it.

If you are considering a divorce or a legal separation, you must know your options and rights. You should contact Kathryn L. Harry & Associates, P.C. at 630-472-9700 for a free consultation. We have offices in Chicagoland, and are here to help guide you through your toughest of times.