What’s the Difference Between Legal Separation and Divorce in Illinois?

Couples who get a legal separation remain married. This allows couples to maintain benefits exclusive to married couples, while still being able to live separate lives. A legal separation does not stop you from divorcing later on. If the couple reconcile, the orders in place for maintenance, child support, and custody can be reversed.

In Illinois, you do not have to be legally separated before getting a divorce.

Why Get a Legal Separation?

Keep Your Spouse’s Health Insurance

Once a divorce is final, most employer health plans will no longer cover the ex-spouse. Depending on the health plan, legally separated couples may be able to continue their existing coverage.

A word of warning: some health plans don’t distinguish between a legal separation and divorce, and might deny benefits for both. If you are considering going down this path, make sure to check the fine print of your benefits package.

Possible Social Security Benefits at Retirement

For social security purposes, a spouse is still considered a spouse as long as they are legally married. This means if you are legally separated, you can still claim social security benefits.

When marriages exceed ten years, divorced spouses who don’t remarry are entitled to social security benefits. Specifically, they receive benefits equal to the greater of the following:

  • Social security benefits based on their own work record
  • 50% of their ex-spouse’s social security benefits based on their work record.

Because of this, some couples choose to legally separate until the ten-year threshold is met.

Maintain the Advantage of Filing Joint Taxes (For a Time)

Filing taxes jointly saves many couples money. Because of this, some couples choose to legally separate so they can continue to take advantage of this. However, in Illinois, you can only file jointly if you were still legally married as of December 31st of the calendar year.

Additionally, if a divorce is dragging on for a long time, a lawyer may advise you to get a legal separation first. This way, you can get the tax benefits while the rest of the case is being wrapped up.

Retention of Military Benefits for Spouses

Military spouses who are married for ten years or longer are entitled to certain benefits under the Uniformed Services Former Spouse Protection Act.[1] Like social security benefits, some spouses choose to remain legally married until they get to the ten-year mark.

To Pool Financial Resources

Some couples choose to legally separate so they can continue living in the same household and pool their resources. In other words, they each have their own “separate” areas in the house, without living apart in order to save money.

In Illinois, however, a couple must be physically living apart in order to petition for a legal separation.

If part of the legal separation involves alimony, updates to the tax code in 2020 may affect you. According to the new rules, alimony isn’t considered alimony for the purpose of taxes if you file taxes jointly. So make sure to consider all of the pros and cons if you are considering legal separation for tax benefits.

To Prepare in Advance of a Divorce

Some couples use legal separation as a way to establish the particulars of spousal maintenance, child support, and custody arrangements in advance of a divorce. This allows families to transition into a divorce gradually, and a separation agreement can eventually turn into a divorce settlement.

It also gives couples time to get through difficult situations like health problems or deaths in the family, without the extra complications that come from divorce.

Abide by Religious Rules and Beliefs

Some religious faiths do not allow for divorce. A legal separation provides some financial and legal protections one would get in a divorce without the divorce itself.

Before a Separation – Weigh Your Options Carefully

Deciding whether separation or divorce is the right option for your family is ultimately down to your needs. It’s worth noting that legal separation is not a simpler process. Many of the same issues that would be resolved in a divorce have to be addressed in a legal separation as well.

Whether you are getting a divorce or a separation, you’ll need to come to an agreement on parental responsibilities and parenting time (custody and visitation), child support, spousal maintenance (alimony), and property division.

We always recommend looking up as much as you can about legal separation before making a decision.

Frequently Asked Questions

How long can you be legally separated in Illinois? There is no time limit on a legal separation in Illinois. If you and your spouse desired, you could be legally separated indefinitely. Conversely, there’s no time where a legal separation will automatically turn into a divorce.

One advantage of a legal separation is that it can be reversed, where a divorce cannot. So if you and your spouse are unsure about a divorce, a legal separation may be a viable first step.

How do you get legally separated in Illinois?

To get a legal separation in Illinois, you or your spouse need to have resided in the state for at least 90 days. A legal separation can only be applied for if one spouse is currently living physically apart.

To apply for a legal separation, you’ll need to file the appropriate forms with the circuit clerk where you live. You will then need to attend a hearing and decide on all the particulars of the agreement, just like a divorce.

Importantly, just because you live apart from your spouse does not automatically make you legally separated. Legal separation is different than simply being separated.

What does it mean to be legally separated?

Legal separations are somewhat rare in Illinois. This is because it settles many of the same issues as a divorce, the only difference being that you are legally still married.

When you are legally separated, the court still mandates things like child support and custody and spousal support. However, because you are legally married, you may be able to still take advantage of certain benefits like staying on a health insurance plan or getting social security benefits.

Though it might sound obvious, a legal separation is not the same as a divorce. You can’t remarry and are still responsible for any joint debts or responsibilities.

Why would you get a legal separation instead of a divorce?

Before the changes to Illinois divorce laws in 2016, many couples legally separated in advance of a divorce. This is no longer required, and so legal separations are increasingly rare. But there are still some instances where couples choose to legally separate instead of divorce:

During a Crisis

After a divorce, one spouse usually loses access to health insurance and other benefits. Because of this, some couples may choose to legally separate to live independently without losing those benefits.

This is especially true if one spouse is having health issues, substance abuse issues or trauma of some kind. It allows couples to separate financially and place certain safeguards in place while maintaining advantages unique to married couples.

It’s worth noting that for some couples, certain provisions can be put into a divorce settlement for these situations.

Religious Reasons

Some faiths forbid or look down on divorce. Legal separation allows a couple to live independently while still remaining legally married.

During a Divorce

Sometimes a couple won’t legally separate instead of divorce but do it as part of a divorce. Sometimes, when a couple hasn’t finalized certain aspects of a divorce but would gain financial benefits by separating before the end of the year, a lawyer may push for a legal separation while the divorce is still ongoing.

Does a legal separation have financial benefits?

Yes and no. A legal separation allows you to (sometimes) stay on a spouse’s health insurance or continue to receive military benefits. In the case of social security, it may provide more long term benefits to wait to divorce until passing a certain number of years.

However, being married may also have financial risks involving joint debt and obligations. Also, since legal separation tends to be lower conflict, it can sometimes end up saving money in legal fees.

However, it’s worth noting that an uncontested divorce or collaborative divorce is a low conflict, cheaper way to divorce as well.

Does legal separation have any advantages over divorce?

Legal separations ultimately decide many of the same issues as divorce. The major difference: a legal separation is reversible, a divorce is not. Even if you remarry the same person, some provisions of the divorce will still affect you.

Beyond this, certain health plans (but not all) allow you to continue benefits if you’re legally separated but not divorced. Also, social security benefits and benefits for military spouses usually do not kick in unless a couple has been married for ten years.

References: [1]Spouse Protection Act

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