Separation and Divorce: Do I Need to Move Out Before I File?

When a married couple is having serious problems, it is not uncommon for the spouses to separate for a while before making any decisions. One partner may move out of the marital home and stay with family members while gathering his or her thoughts about what to do next. The practice is common enough, in fact, that most couples would not think about filing for a divorce while living under the same roof.

A common practice, however, is not the same as a legal requirement. You may be surprised to learn that while the law in Illinois once required a couple to live apart before a no-fault divorce, such is no longer the case. Today, a couple could theoretically file for divorce and complete the process without proving any separation whatsoever.

The Old Law

Before 2016, a couple seeking a divorce on the grounds of irreconcilable differences—often known as a no-fault divorce—was required to live separate and apart for a period of two years before the divorce could be completed. Specific court rulings determined that spouses could technically live “separate and apart” in the same home, but, for the most part, at least one spouse would find a new place to live during the separation. By agreement of both parties, the separation could be shortened to six months, but not completely waived.

The New Law

As part of the overhaul to the Illinois Marriage and Dissolution of Marriage Act in the summer of 2015, lawmakers decided that making a couple wait for up to two years was a waste of time. Beginning January 1, 2016, a divorce in Illinois could only be granted on the grounds of irreconcilable differences, but the requirement for separation was removed completely. A couple who agreed to a divorce could proceed immediately, at least according to the law. If the couple did not agree, the court would accept a six-month period of living separate and apart as irrefutable proof that the marriage had broken down.

While the intent of the new law is relatively straightforward, it is difficult to know for sure how many couples will take advantage of the new provisions regarding separation. In many cases, spouses use a separation period to prepare emotionally and financially for the process of divorce, which could be very difficult to do while living in the same home.  For those who are able, however, the amended law provides for a much faster divorce process—depending, of course, on the backlog that exists in the county in which you file.

Call a Wheaton Divorce Lawyer

To learn more about the process of divorce in Illinois, contact an experienced divorce attorney in DuPage County. We will answer your questions and provide the guidance you need to prepare for the road ahead. Call 630-904-3033 for a free consultation at any of our five convenient office locations.