Legal separation in Illinois is not similar to a divorce. Divorce is defined as the legal dissolution of a marriage. Ex-spouses are free to marry new people. Parental duties, parenting time, and child support can all be decided by the court. It can also calculate spousal support and property division.

The word “legal separation” is a technical one. It is not the same as merely living apart from one’s spouse and so on. A legal separation does not constitute the legal ending of a marriage.

Spouses are still wedded after a legal separation. They are unable to marry again until they divorce. The allocation of parental obligations, parenting time, child support, and maintenance can all be decided by a court (spousal support). You and your spouse must agree before the court can split your property. You must apply to the court for a property division order.

You can petition for legal separation if you don’t think you can live with your spouse. A legal separation does not preclude you or your spouse from filing for divorce.

Why Choose Legal Separation as an Option

You and your spouse will live apart while still legally married during a legal separation. However, the relocation of one spouse does not always result in a legal separation. Instead, you’ll need to file a lawsuit in your local county court.

If you choose the option of legally separate in Illinois, you and your spouse may discover that it has various advantages.

These can include the following:

  • While filing for divorce can feel like an unavoidable step toward the end of your marriage, a legal separation can allow you to reflect on your wants, needs, and emotions to determine whether or not reconciliation is possible and whether or not you want to proceed with the dissolution.
  • Spousal health insurance benefits will continue to be paid. You may be qualified for health insurance coverage through your spouse’s job while still legally married. This is especially critical during a worldwide health crisis, like the COVID-19 pandemic, or if you have a chronic health condition and are not covered by your employer’s insurance.
  • Religious or cultural beliefs must be followed. If your culture or religion forbids divorce, a legal separation may be a viable long-term option that allows you to end a non-working relationship without the stigma of a divorce.
  • As long as they are legally married, a spouse is still regarded as a spouse for social security purposes. This means that even if you are legally divorced, you can continue to get social security payments.

Divorced spouses who do not remarry are eligible for social security benefits after 10 years of marriage. Specifically, they are entitled to the greater of the following benefits:

Benefits from social security based on their work history.

They are entitled to 50 percent of their ex-social spouse’s security benefits based on their work history. As a result, some couples choose to formally split until they reach the ten-year mark.

  • Many couples save money by filing their taxes together. As a result, some couples choose to legally divorce to reap the benefits. In Illinois, however, you can only file jointly if you were legally married on December 31st of the previous year.

A lawyer may also advise you to obtain a formal separation first if your divorce is taking too long. This way, you’ll be able to take advantage of the tax benefits while the remainder of the case is being resolved.

  • Some couples prefer to officially divorce so that they can continue to live together and combine their resources. In other words, instead of living separately to save money, they each have their own “different” spaces in the house.

However, in Illinois, a couple must be physically separated before filing for legal separation.

If you receive alimony as part of your legal separation, changes to the tax code in 2020 may affect you. Alimony is no longer deemed alimony for tax purposes if you file jointly, according to the new guidelines. If you’re thinking about a formal separation for tax reasons, make careful to weigh all of the benefits and drawbacks.

Despite these potential advantages, a legal separation is not appropriate in every scenario, and you should be aware of some of the disadvantages.

Consider the following scenario:

  • The difficulties of living in two households: You may be disappointed if you believe that legal separation will allow you to sidestep all of the legal issues that come with divorce. Because you and your husband will be living apart, you may need to work out spousal maintenance, child support, and parenting time arrangements if you have children under the age of 18.
  • The status of your marriage is uncertain: You cannot legally remarry if you stay married to your spouse, and it may be challenging to start a new personal connection while your partner is still alive.

How To Get a Legal Separation in Illinois

To begin filing for separation in Illinois, one of the parties must submit a verified petition for legal separation and a summons, which must be filed with the Clerk of the Circuit Court in the county where one of the spouses resides or where the parties last lived together as husband and wife.

The summons and petition for legal separation must then be served on the other spouse in accordance with Illinois personal service standards. A hearing date will be included in the summons.

If all goes well at the hearing, the judge will issue an order providing legal separation. Some matters, such as spousal maintenance and child support, may be deferred to a later hearing date if they cannot be resolved at the initial hearing. A second hearing is unlikely if the parties have prepared a separation agreement that addresses these issues in advance.

A separation agreement Illinois is a legally enforceable contract between spouses that addresses property, debt, and child-related matters. Depending on the circumstances of the marriage, this might be a highly complicated and detailed document. Many couples hire an attorney to prepare this or decide to do it themselves.

Before the hearing, the spouse may file a response, in which a court will rule on the separation and all matters involved, such as child custody and maintenance. Only if both spouses agree to it may property be divided.

The person filing the motion must have lived in Illinois for 90 days before the court may award a formal separation. The other spouse does not have to live in Illinois at the time of filing, but the court may be unable to assess child support and maintenance if the spouse has never lived in the state. If children are involved, the court will not make a custody decision until they have lived in the state for six months.

The couple has the option of reconciling at any moment during the separation, but they also have the option of divorcing at any time. Many of the court decisions made during the separation may be carried over into the divorce, so it is critical to seek legal advice from an Illinois lawyer before submitting the initial petition.

Why Would You Get Legally Separated in Illinois Rather Than a Divorce?

Many couples legally separated in advance of a divorce before the changes to Illinois divorce laws in 2016. Because this is no longer necessary, legal separations are becoming increasingly infrequent.

However, certain couples opt to officially split rather than divorce:

  1. During a time of crisis

One spouse frequently loses access to health insurance and other benefits after a divorce. As a result, some spouses may choose to officially divorce in order to live independently and keep their benefits.

This is especially true if one of the spouses is dealing with health concerns, substance abuse, or trauma. It allows couples to separate financially and put in place certain precautions while still enjoying the benefits that come with being married.

It’s worth mentioning that some provisions for these situations can be included in a divorce settlement for some spouses.

  1. Religious motives

Divorce is forbidden or frowned upon in some religions. Formal separation permits a couple to live apart while maintaining their legal marriage.

  1. During the divorce process

Occasionally, a couple will not legally split instead of divorcing but will do so as part of the divorce process. A lawyer may advocate for a formal separation while the divorce is still pending if a couple hasn’t finalized certain aspects of their divorce but would benefit financially by separating before the end of the year.

If you’re certain that staying married isn’t in your best interests, the certainty of a divorce may be just what you need to go on with your life. On the other hand, if you have worries or doubts, divorce may seem like an overly permanent solution for your current predicament. A formal separation may be a reasonable option in this circumstance, but you should be aware of the potential benefits and risks before proceeding.

Conclusion

In conclusion, a legal separation allows a spouse who is not at fault to obtain fair support and maintenance while the parties live apart, according to Illinois law. With a divorce, this isn’t always the case.

Further, we conclude the following:

  • You can petition for legal separation if you don’t think you can live with your spouse. A legal separation does not preclude you or your spouse from filing for divorce.
  • You and your spouse will live apart while still legally married during a legal separation. However, the relocation of one spouse does not always result in a legal separation. Rather, you’ll need to file a lawsuit in your local county court.
  • The summons and petition for legal separation must then be served on the other spouse in accordance with Illinois personal service standards. A hearing date will be included in the summons.
  • The couple has the option of reconciling at any moment during the separation, but they also have the option of divorcing at any time.
  • The person filing the motion must have lived in Illinois for 90 days before the court may award a formal separation.

We hope that this article gave you a better understanding of the laws and processes regarding legal separation in Illinois.

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