How Does a Couple Legally Separate in Illinois?

 

Legal separations have become relatively rare in Illinois. This may be, in part, because they are not the same thing as a divorce, nor are they necessary to seek a divorce. Despite this, there is statutory authority in Illinois that authorizes legal separations and there are several scenarios in which it may benefit one or both spouses to seek one.

Requirements of a Legal Separation

In order to legally separate, a couple must be living “separate and apart.” While many states require that spouses live in separate residences to qualify, the courts of Illinois have interpreted this more leniently. In Illinois, a couple can be living in the same home, so long as they sleep in different bedrooms and are not engaging in sexual relations.

A legal separation is a not a divorce, but allows the requesting party to obtain “reasonable support and maintenance” while they live apart.

Reasons for Seeking a Legal Separation

Religious reasons — Although times are changing in attitudes toward divorce, a traditional reason that some couples do not want to be together, but feel like they do not want the religious stigma or ramifications of a divorce. They therefore choose the legal distinction of being separated, since a separation is not the same thing as a divorce. Significantly, a person cannot remarry if they are legally separated.

Financial and insurance benefits — There are tax advantages and financial benefits available to legally separated spouses, such as tax deductions for spousal support payments. In addition, it may be beneficial for a separated spouse to continue to be on the other spouse’s health insurance or pension plans, which still treat the legally separated spouses as a married couple.

Does Not Address Marital Property

A key shortcoming of a legal separation is that the court lacks authority to address or divide marital property. In divorces, spouses can get preliminary orders from the court that protect marital assets from fraud, conversion, or waste. A legal separation is not a divorce, and so the court cannot address such issues unless both parties reach some form of an agreement that addresses property, and that agreement is not “unconscionable.”

You Need an Attorney

Separations and divorces can be devastating, and it is often to make clear-headed decisions regarding the future. If you need help, contact the Law Office of Robert S. Thomas. I have over twenty years of experience in family law and can help guide you toward the future. My team will listen to you and offer compassionate, professional representation. Contact our offices today at 847-392-5893 to schedule a consultation or visit our website today.

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