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What Is a Legal Separation and How Is It Different From a Divorce in Illinois

DATE POSTED: April 19, 2024 12:22 am

What Is a Legal Separation and How Is It Different From a Divorce in Illinois

Confused about the difference between taking a break and calling it quits in Illinois?

Legal separation allows couples to live separately and resolve important matters like property division or child custody while keeping the marriage intact.

On the flip side, divorce, with its finality, dissolves the marriage entirely, leading to a complete severance of legal ties between partners.

The differences between these two options are not just in their definitions but in their practical implications, affecting everything from finances to family dynamics.

We’ll guide you through the legal nuances, rights preserved, and potential for reconciliation that define each path in the state of Illinois.

Key Takeaways

  • Legal separation in Illinois allows couples to live apart while remaining legally married, enabling them to address issues like property division and child custody without terminating the marriage, preserving benefits like health insurance and social security.
  • The legal separation process requires a petition to be filed, adherence to residency requirements, and crafting a separation agreement that covers child custody, spousal support, and property division.
  • Legal separation offers flexibility for reconciliation and continued benefits yet differs from divorce as it does not allow remarrying and requires mutual agreement for property division.

Exploring Legal Separation in Illinois: Definition and Purpose

In Illinois, legal separation is an arrangement sanctioned by the court that permits couples to live separately while still being legally married, providing a platform to address issues like property division, child custody, and spousal support.

 It can serve multiple purposes, acting as a precursor to divorce, a means for potential reconciliation, or a way to uphold religious beliefs.

It can also be an avenue for couples to maintain the benefits of being married, such as continued health insurance coverage or social security benefits.

In contrast to divorce, legal separation offers a unique blend of individual independence while preserving the legal benefits of marriage.

Here are some key points to understand about legal separation:

  • Spouses continue to be legally married during a legal separation.
  • This status prevents them from remarrying unless they decide to obtain a divorce.
  • Legal separation can be an appealing option for many couples facing marital difficulties.

The Distinctive Characteristics of Legal Separation vs. Divorce

Although legal separation and divorce both involve legal agreements approved by a court, their implications for marital status are distinct.

Legal separation allows couples in Illinois to live apart while maintaining their marital status, unlike divorce, which terminates the marriage.

Notably, both processes handle critical issues like property division and spousal support. However, only a divorce decree dissolves the marriage.

Legal separation provides an opportunity for couples to:

  • reconcile without undergoing formal legal proceedings to remarry
  • have a trial period of living apart to assess the viability of their relationship
  • maintain certain legal benefits, such as health insurance coverage or tax benefits that may be lost in a divorce
  • divide their assets and debts in a structured and legally binding manner
  • establish child custody and support arrangements

This flexibility can be a significant factor for couples who might consider reconciling in the future or those who wish to avoid the finality of a divorce.

Initiating the Legal Separation Process: Required Steps

Initiating legal separation in Illinois involves a series of steps. Here is an overview of the process:

  1. One spouse must file a petition, which can include readily available forms to assist in the process.
  2. It’s crucial to meet certain residency requirements. Specifically, individuals looking to obtain a legal separation in Illinois must have lived in the state for over 90 days.
  3. The spouses should be living apart from each other when filing the petition.

This petition must be filed in one of the following locations:

  • The county where the other spouse resides
  • The county where the couple last lived as husband and wife
  • The county where one party now resides if the other cannot be located in Illinois

This requirement ensures the court has appropriate jurisdiction over the case and allows for the effective serving of legal documents.

Crafting a Separation Agreement

A separation agreement is a legal document that outlines the terms and conditions of separation.

Crafting a comprehensive separation agreement is vital to explicitly outline child custody, child support, spousal support, and property division.

This agreement provides a roadmap for the separation, guiding both parties through the process and minimizing potential conflicts.

Given the complexity and detailed nature of the document, as well as changing laws governing legal separation, it is recommended to consult an attorney when creating a separation agreement.

This guarantees that the agreement encompasses terms about:

  • child custody
  • spousal support
  • property division
  • differentiates between marital and non-marital property
  • Addresses asset commingling.

Continuance of Marriage Benefits and Legal Separation

In Illinois, opting for legal separation over divorce enables married couples to live separately and yet preserve their legal marital status under Illinois law.

This arrangement enables legally separated spouses to continue to have the right to remain on each other’s health insurance plans, an important consideration for those choosing legal separation over divorce.

Legal separation also allows partners to keep financial benefits such as:

  • potential eligibility for Social Security or pension benefits
  • preservation of social security benefits upon retirement
  • maintenance of military benefits for spouses

This continuance of financial advantages, including spousal maintenance and privileges exclusive to married couples, is a significant perk of legal separation, making it an appealing choice for many couples.

Financial Implications: Support and Division in Legal Separation

Legal separation tackles critical financial issues such as child and spousal support. However, the court’s ability to make decisions on these matters may be limited if one spouse has never lived in Illinois.

Property division requires mutual consent and a request to the court, which can be challenging if both parties cannot agree.

Unlike divorce proceedings, which offer the ability to freeze assets and follow equitable distribution, legal separation requires a mutual agreement for property division.

Navigating Child Custody Arrangements During Legal Separation

During legal separation, child custody arrangements are designed in the best interests of the child at the center stage.

Factors such as the child’s needs, relationship with each parent, and their adjustment to home, school, and community play a significant role in determining custody.

This process may result in either sole or joint legal and physical custody, with legal custody pertaining to decisions about the child’s education, healthcare, and religious upbringing.

In contrast, physical custody pertains to the child’s residence and daily supervision.

In contested child custody cases, the court undertakes a trial process to determine custody based on a range of factors, including the child’s and parent’s wishes and the child’s adjustment to their environment.

This process can be complex, emphasizing the importance of having a family attorney to provide guidance on legal standards for custody and advocate for arrangements that prioritize the child’s best interests.

Religious Beliefs, Health Issues, and Social Stigma: Reasons to Choose Legal Separation

Opting for legal separation over divorce is a personal choice, subject to various influencing factors.

For some couples, their religious beliefs may discourage or prohibit divorce, making legal separation a more acceptable alternative.

Health issues can also play a significant role in this decision. Legal separation allows couples to remain legally married and maintain health insurance benefits through one spouse’s policy, which can be crucial if one spouse has significant health concerns.

Concerns about social stigma can also influence the decision to choose legal separation over divorce.

Some couples prefer to avoid the label of being divorced and the potential social implications that come with it.

A family law attorney in Illinois may recommend considering legal separation over divorce for these specific reasons, further emphasizing the importance of professional legal advice during this process.

 In such cases, understanding divorce law can be crucial for making an informed decision.

Alternative Dispute Resolution in Legal Separation Cases

During legal separation, disputes can be settled through alternative resolution methods like mediation and collaborative law.

 Mediation is a process where a neutral third party helps couples reach agreements in legal separation cases without court involvement.

An impartial mediator facilitates discussions, aiming to help the parties negotiate a workable settlement.

Though the outcomes of mediation are non-binding, they provide an incentive for parties to avoid court and additional costs.

Collaborative law is another alternative dispute resolution process where each party has a collaborative law-certified attorney with a shared commitment to avoid litigation.

Spouses can include professionals like appraisers or child specialists to assist with complex matters like asset valuation or child custody disputes.

Even if mediation does not result in a final agreement, it can facilitate a better understanding between parties, aiding future negotiations.

Legal Representation: The Role of a Family Law Attorney

It’s essential to consult a family law attorney to safeguard your rights, comprehend available options, and settle disputes during legal separation.

Family lawyers are equipped to minimize conflict and protect the financial well-being of their clients during the process of legal separation.

They navigate divorce, legal separation, mediation, and other family law issues, providing necessary guidance and advocacy.

Family law attorneys are cognizant of the changing laws governing legal separation, ensuring up-to-date advice and representation.

Their role is instrumental in ensuring that the legal separation process is carried out smoothly and effectively, safeguarding your interests at every step of the way.

 Establishing an attorney-client relationship with a family law attorney is crucial for navigating the complexities of legal separation.

From Separation to Divorce: Transitioning to a New Legal Status

In Illinois, the process of transitioning from legal separation to an Illinois divorce is flexible. Once the court finalizes legal separation, spouses can file for divorce at any time.

The separation agreement crafted during legal separation can set a precedent for asset division, child custody, and support arrangements in divorce proceedings, simplifying the transition.

Moving from legal separation to divorce enables an individual to remarry, and the terms of the separation agreement may be utilized to form the basis of the divorce decree.

 The existence of a separation agreement can conserve both time and expenses during the divorce process, making the transition smoother and more straightforward.


Legal separation in Illinois offers a viable alternative to divorce, allowing couples to live apart while retaining their marital status and the benefits that come with it.

From crafting a comprehensive separation agreement to navigating child custody arrangements, the process involves careful consideration and understanding of legal procedures.

However, it’s important to remember that each situation is unique, and what works for one couple may not work for another.

Consulting with a family law attorney can provide valuable guidance, helping individuals navigate the complexities of legal separation and make informed decisions that protect their rights and interests.

Feeling Adrift Together but Apart?

Navigating a separation can feel like wandering through fog—uncertain and isolating.

If you and your partner are considering legal separation, know that it doesn’t have to be a journey you embark on without a map.

Cooper Trachtenberg Law Group, LLC, specializes in guiding couples through the intricacies of legal separation with compassion and expertise.

We ensure your mutual decisions on property, children, and finances are clear and fair, transforming a potentially tumultuous time into a passage of mutual respect and understanding.

Reach Out Today.

Frequently Asked Questions

How much does a legal separation cost in Illinois?

Filing for legal separation in Illinois includes court filing fees, but this amount may vary by county. Consider consulting with a legal professional to get a more accurate estimate.

What is the point of separation instead of divorce?

The point of separation instead of divorce is to allow married couples to retain benefits like joint taxes, health insurance coverage, and Social Security payments without terminating the marriage. Consequently, legal separation provides a way for couples to navigate their lives independently while maintaining certain benefits.

How long does a legal separation last in Illinois?

A legal separation in Illinois can last indefinitely, allowing a spouse to file for divorce at any time after the court finalizes the separation.

What are the benefits of legal separation in Illinois?

Legal separation in Illinois offers couples the opportunity to establish specific terms related to property division, spousal support, and child-related matters, providing a framework to address their unique circumstances. This can be particularly beneficial for couples with religious or personal considerations.

What is legal separation in Illinois?

In Illinois, legal separation is a court-sanctioned arrangement that enables couples to live separately while still being legally married, providing a platform to address critical issues such as property division, child custody, and spousal support.