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Legal Separation in Illinois

Legal separation is right for people who want to separate, but don’t want a full divorce. In legal separation, parties physically separate but remain legally married. Legally separated couples get many of the financial benefits and other perks exclusive to married couples. But they still have to figure out maintenance, property division, child custody, and child support.

If you want to separate from your spouse, but you also don’t want to get a full divorce, legal separation is another path you can take.

Read below to see the benefits and drawbacks of getting a legal separation instead of a divorce.

What Legal Separation Means

Legal separation is a legal arrangement where a married couple decides to live separate lives but remain married.

Legal separation is a way for married couples to separate when they don’t want a full divorce. Legal separations do not happen often because most people separating want to cut as many ties to the other party as possible.

Legally separated parties live physically and financially separate, but they are still married. And at any time during or after the separation, either party can file to get a divorce and completely dissolve the marriage.[1]

Legal Separation vs. Divorce

The main difference between a legal separation and a standard divorce is that a divorce ends the marriage. Legal separation is also not an annulment. An annulment is where the court invalidates the marriage, meaning they make it as if the marriage never happened.

But whether you get a divorce, legal separation, or annulment, the legal process is very similar. The process is similar because each type resolves the same issues: child custody, property division, spousal support, etc.

Whether to get a legal separation or a divorce depends on your exact situation and your own goals. Below is a list of the positives and negatives of legal separation to help you decide.

Benefits of Legal Separation

Some people choose legal separation over divorce because:

  • Separation gives you the right to reasonable support and maintenance.[2]
  • It fits their belief system or religious rules.
  • Separated spouses can still share health insurance.
  • There are potential social security benefits at retirement.
  • It maintains military benefits for spouses.
  • It can be a trial run for a divorce.
  • It can be easier for issues surrounding shared children.
  • It’s easier to pool financial resources for children.
  • It avoids the social stigma that comes with divorce.
  • Property gained after separation is non-marital.

Drawbacks of Legal Separation

Even with the list of benefits, legal separation is rare. Many think about it as an option, but most separating couples choose divorce.

Legal separation is not chosen by many because:

  • You remain married to the person you want to separate from.
  • It may be a waste of time and money if you end up divorcing anyway.
  • It is just as complex and stressful as a divorce.
  • It can be stressful for children if they don’t fully understand separation.
  • The marital status is in limbo where some things view separated couples as still married but others do not.
  • You can’t remarry and it complicates starting new relationships.
  • The court has less power to enforce an equitable property division.[3]

There are many factors to consider when deciding whether to get a divorce or a legal separation. To be sure you make the right choice for your situation, the best thing to do is talk with a family law attorney.

With Sterling Lawyers, LLC, your attorney outlines the benefits and drawbacks of each option for your specific case. Then you make the informed decision of how to move forwards.

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

How to File for Legal Separation

You file for legal separation the same way you file for divorce. However, there are some restrictions special to legal separation. To file for a separation, the person filing cannot be at fault. This is usually not an issue because Illinois is a no-fault divorce state.

The law also states that parties must live physically separate to get a legal separation. But this doesn’t mean they need to live in different houses. The court understands that not everyone has the means to move out right away.

Are you ready to move forward? Call (312) 757-8082 to schedule a strategy session with one of our attorneys.


What Are the Grounds of Legal Separation?

The only grounds needed to get a legal separation is that the marriage is irreconcilable, unable to be fixed. One way to prove a marriage cannot be fixed is by separating for six months before filing. But this isn't usually necessary, especially if both parties want the divorce.

What Is the Difference Between Legal Separation and Not Living with My Spouse?

The difference between simply living separately and getting a legal separation is the legal process.

In a legal separation, the court makes sure the important issues (child custody, property division, etc.) are straightened away. The court process is more thorough because it plans for the future.

Can I Still Get a Legal Separation if My Spouse Does Not Live in Illinois?

Yes, as long as the person filing lives in Illinois, they can get a legal separation. The court will then assess if they have the jurisdiction to rule on issues like child support.

Can Custody Be Decided with a Legal Separation?

Yes, child custody laws apply during a legal separation. Because most people stop living together after a separation, the children need a plan of where they will live and when.

Can You Remarry After Legal Separation?

People who are legally separated cannot marry other people even after the case closes. This is because they are still technically married. If the separated parties want to get back together, they have to get rid of their legal separation.

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. 750 ILCS § 5/402 (b)(3). Legal Separation. | 2. 750 ILCS § 5/402 (a). | 3. 750 ILCS § 5/402 (b)(1).

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