When a marriage seems to have failed, many couples assume that divorce is not only inevitable, but the only available solution. For a large majority of couples in that situation, divorce may, in fact, be in their long-term best interest. In some cases, however, one spouse may instead wish to file for a legal separation.
Legal separation differs from divorce in that a separation does not legally end the marriage. Following a divorce, both parties are free to legally marry someone else and arrangements are made regarding custody, support, and visitation of children and to divide property. Legally separated spouses are still married to each other and may not seek to marry others. Custody, support, and visitation of children, and spousal maintenance arrangements must be established and property division may be negotiated but is not required.
An individual can file for a legal separation as long as both spouses are not currently living in the same house, and only if the filing spouse did not cause the separation. Divorce, on the other hand, requires grounds, either no-fault, requiring at least a six-month separation and agreement by both spouses, or one of many fault grounds set forth by Illinois law.
There are situations in which legal separation may help, even if the couple eventually does get divorced. If the spouses no longer share a home, it may be in the best interest of the couple’s children to quickly establish custody and support orders, even if neither spouse has the standing to file for divorce. If, as an example, a husband walks out and abandons the family, the law requires the wife to wait at least a year to file for divorce. She could, in the meantime, file for a legal separation so that child support and spousal maintenance orders can be arranged, allowing her to properly provide for her children.
Legal separation may also help simplify property division for spouses already living apart but not yet divorced. One spouse may get a significant raise or a second job, but does not feel the additional income should be included in the marital assets. Rather than illegally hiding the assets, the spouse may choose to pursue a legal separation, as property received after the legal separation is not subject to division, even in a future divorce.
There is no time limit or expiration date on a legal separation. It may last indefinitely, or may eventually be converted to a divorce. Any orders or agreements established in the separation typically remain in force under the terms of the divorce.
If you are in a situation that you think could be helped by a legal separation, contact an experienced DuPage County family law attorney. Every case is unique and requires individual attention. You can rely on us to help you understand your options under the law and make the best decision for you and your family.