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.

For Immediate help with your family law case or answering any questions please call (312) 757-8082 now!

Frequently Asked Questions

How do you become legally separated in Illinois?

To get a legal separation in Illinois, you file all the necessary paperwork to begin the process. Filing for a legal separation is very similar to filing for divorce. You just need to specify on the documents that it is for legal separation not divorce.

What does legally separated mean in Illinois?

Legally separated means parties are physically and financially separated but still married. This means that parties can live separate lives, but they are still linked in some important ways.

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

Many people get a legal separation because of their religious beliefs. Others get a legal separation because they aren’t ready for a divorce. The benefits of the legal separation section above details more reasons why people get legal separations.

Does legal separation protect me financially in Illinois?

Depending on what you are looking for, yes, legal separation does protect you financially. What this means is that all property gained after a legal separation is non-marital property. However, legal separation doesn’t protect you from dividing assets already accrued.

What's the difference between legal separation and divorce?

The biggest difference between a legal separation and a divorce is that you are still married after a legal separation. Whereas after a divorce, parties are no longer married and are completely separate. In a legal separation, parties can still share things like health insurance and military benefits.

Can you be legally separated and live in the same house in Illinois?

Yes, parties can live in the same house and get a legal separation. Not everyone can afford to live separately. Others may not want to put the strain of a move and living in two places on their children.

Is it better to divorce or separate?

Which option is better depends on your situation and your needs. For example, if you want to be completely separated from your spouse, you should get a divorce. Or, if you still want to share military benefits with your spouse, you should get a legal separation.
The best thing to do is talk it through with an attorney to fully understand the positives and negatives in your case.

Can you date while legally separated in Illinois?

There are no laws against dating during a legal separation just like there are no laws against dating during marriage. But it may be a bit awkward to tell the person you are dating that you’re still married to your ex. Also, you can’t get married if you are legally separated, so that might be rough for future relationships.

References: [1]Spouse Protection Act