What is the difference between a legal separation and a divorce?

  • Robert S. Thomas,
  •   Family Law
  •   Comments Off on What is the difference between a legal separation and a divorce?

The difference between a legal separation and a divorce is that a legal separation is a court order between married people allowing the court to be able to issue future orders in regards to money, custody, division of assets, visitation with children, however the couple remains married. A legal separation allows a couple to live apart—and at a later date—decide if a divorce is appropriate. Legal separation is a less permanent alternative than divorce. Termination of a marriage is governed by the provisions of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101-802).

The most common statutory ground cited in pleadings for divorce is “irreconcilable differences have caused the irretrievable breakdown of the marriage.” This is called “no fault” divorce.

The no fault statute specifies that the parties must have lived “separate and apart” for two years. However, if both parties agree the marriage has been over for at least six months prior to the filing of the petition for resolution, then the six months is substituted for the two year requirement. The parties themselves, and not the court, decide what constitutes a marital relationship being non-existent for six months. Parties qualify for the two year or six month requisite, even if they continue to reside in the same house. In addition, the party initiating the divorce proceeding, called the “petitioner”, must have resided in Illinois for a period of ninety continuous days prior to filing a petition for divorce.

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