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When Does Legal Separation Become Divorce?

By Nottage and Ward on April 3, 2020

Spouses who are experiencing a rough patch may choose separate temporarily or even permanently if they feel that rough patch can’t be overcome. This may involve a trial separation, in which one spouse moves out but the legal rules of marriage continue to apply. Couples who are not ready for divorce may opt for a legal separation, which changes your legal status without dissolving the marriage.

How Does Legal Separation Work in Illinois?

Legal separation in Illinois is a court-sanctioned process by which spouses agree to live separately, both physically and financially. Under this agreement, they are still married, and neither spouse may remarry unless they divorce. Legal separation is finalized with a judgment from the court stating the new legal status of separation and the terms and conditions of the agreement. It deals with the same issues that arise in a divorce without terminating the marriage. Those issues include:

• Division of assets and debts as agreed to by the parties
• Allocation of parental responsibilities (child custody)
• Parenting time
• Support

In Illinois, a spouse may receive reasonable support and maintenance while the couple lives apart during a legal separation. To obtain a judgment of legal separation, the couple must live physically separate from each other, and at least one spouse must be an Illinois resident. The separating couple may prepare a marital separation agreement for the court’s approval that addresses the terms and conditions of the separation. The court will decide if the agreement is fair. This agreement is a legally binding contract, signed by both spouses, intended to resolve issues related to property, debt, and children.

What Are the Advantages of Legal Separation Over Divorce?

Separating couples may choose legal separation as an alternative to divorce for various reasons, which may include:

• Religious beliefs against divorce
• Desire to keep the family legally together for the sake of the children
• Avoiding the social stigma of divorce
• Maintaining health insurance and other benefits that would be lost through a divorce
• Staying married long enough for one spouse to draw on the other spouse’s Social Security or military benefits
• Hopes of eventually salvaging the marriage

Can Legally Separated Couples Divorce?

During the separation, neither spouse is prevented from filing for divorce. In fact, in many cases, a legal separation acts as a trial run for divorce. If you decide to divorce after you have been legally separated, the process may be simplified by the legal separation agreement you already have in place. This agreement addresses the same issues that would arise in a divorce, including the allocation of parental responsibilities, parenting time, and support. Having these issues resolved in advance could go a long way toward making divorce more amicable.

Sound Legal Counsel for Legal Separation or Divorce

If you are considering legal separation or divorce, our Chicago family law attorneys at Nottage and Ward, LLP can advise you on your options and assist you through the process. We have focused our practice exclusively on this legal area for more than 30 years, and we know how to negotiate, litigate, and resolve complex issues. Contact us at (312) 332-2915 for sound legal guidance and dedicated representation in a divorce or legal separation.