How to File for Legal Separation in Illinois

Date: 06/21/2022

Author: Prime Law Group

When a marriage breaks down, it can take a long time for a couple to come to terms with it. 

Illinois has one of the lowest divorce rates in the country. Nevertheless, almost two out of every 1,000 couples end their marriages. 

This means losing the future you planned. It can feel like a waste of emotion, time, and money invested in your partnership. If you are not ready for a divorce, you might wonder how to file for legal separation in Illinois. 

This can be an excellent solution if you and your spouse feel you no longer want to live together as husband and wife. Divorce is a drastic and final move. Sometimes, you need more time to reflect on whether it is the right decision.

Keep reading to learn more about the process of legal separation and how it is different from filing for divorce.

What Is Legal Separation?

In Illinois, you can ask a family court for a legal separation from your husband or wife.

Under this process, you are still married and cannot marry someone else. However, the court will make a set of decisions that will ease the process of living apart. This will include separating your finances.

During a legal separation, the court will decide what forms of financial support and maintenance will be necessary.

Here are some examples of what you can expect the court to rule on a legal separation.

  • A child custody agreement
  • A ruling on child visitation
  • Decisions over payments of alimony and child support

If the couple wishes, they can ask the court to divide their assets. In this case, a judge will decide who pays off which debts and who gets which property.

After a legal separation process, you will be free to live your own life, and your finances will be your own. Any assets or property that you may gain after being legally separated will not be considered marital property.

Why Choose Separation Over Divorce?

Deciding to get a divorce can be difficult. In addition, it is not always the right decision for every couple who no longer wishes to be married. 

There are many reasons why it may be beneficial to opt for legal separation rather than filing for divorce.  

Religious or Cultural Taboos

While divorce is no longer as frowned upon in society as it once was, there are still people who belong to religions or cultures which prohibit the ending of a marriage.

The Catholic Church sees marriage as eternal, and for Hindus, a divorce is rarely an option. Sometimes the desire to avoid divorce can come from family or community pressures.

Financial Benefits

When you have been married for a long time or are an elderly couple, you may wish to keep some benefits. Some health insurance policies will allow you to keep your spouse on as a dependent even after legal separation. 

You may also get your spouse’s social security or military benefits if you remain married. But be careful because you might also remain responsible for your partner’s debts.

Some couples may benefit from being able to file their taxes as a married couple. This can sometimes come with tax benefits. However, in Illinois, legally separated couples are not allowed to jointly file tax returns. 

It is important to note that when you remain married, you can still make financial or medical decisions for each other. This is because you are still considered next-of-kin. You should consider this with care as it may not be something you want.

You Need Time Apart

Finally, a legal separation may allow a couple to go through a cooling-off period and begin to understand the ramifications of ending their marriage. Perhaps you will also need time to help your children adjust to their parent’s separation and new living arrangements. 

During this period apart, one partner may need financial support and maintenance. 

Getting a legal separation will take care of these logistical matters while deciding your next steps.

Who Is Eligible for Legal Separation?

In Illinois, both spouses need to agree to pursue a legal separation. If either husband or wife objects or files for divorce instead, the process will not go forward.

If you want to file for legal separation, either you or your spouse must have been living in Illinois for at least 90 days. If child custody is involved, your child must have lived in the state for at least six months before you file the petition. 

Another requirement is that you must be living apart when you file for legal separation. 

How to File for Legal Separation in Illinois

To legally separate in Illinois, one spouse will need to file a request with a circuit court in the county where they live. They can also file in the county they last lived in as a couple.

A court clerk will be able to give you the forms you need. You will then submit these, declaring you are living apart and want a legal separation.

The person filing the petition will need to declare that the separation is not their fault. 

You will have to fill in basic information about yourself and your spouse in legal separation documents.

This can include:

  • Names and ages
  • Addresses
  • Occupations
  • Financial details
  • Details on children
  • Date of marriage
  • Separation date

In Illinois, the petition will be served on the other party to the marriage, along with a summons to attend a hearing. The person receiving these documents will have an opportunity to file a written response.

During the hearing, a judge will listen to both parties and rule on the different issues they raise. If the couple has come to an agreement before the hearing, the judge will review this and grant the legal separation.

If the couple cannot agree, further hearings may be necessary with a lawyer for legal separation.

Can You File for Divorce After Separation?

While many of us dream of a happy ending, statistics show that most couples who separate will go on to divorce. Accepting that your marriage is in trouble or that you are no longer compatible is a big decision.

So a reversal of the decision to end the relationship is unlikely.

If you are legally separated, there is nothing stopping you from filing for divorce. You may wish to do this to make a clean break from your spouse. Or, you may want to re-marry and build your life with someone new.

To seek a divorce, you will file a petition to end your marriage in the same way you would have if you had not been legally separated.

Under Illinois divorce laws, you do not have to prove that your spouse was somehow at fault or guilty of something that caused the marriage to end. You only need to state that there are “irreconcilable differences.”

This means that the marriage no longer works and is beyond repair.

If you already have a legal separation, this will prove that the marriage has broken down. 

If you and your spouse still agree on the terms of your separation, this should be easy to resolve during the divorce. However, if you wish to revise and change the terms of maintenance or child custody, the process could take a little bit longer and require additional hearings.

Divorce mediation is always a good solution when you try and agree on the terms of your final separation. 

What if We Reconcile After Separation?

Spending time apart can sometimes show couples that they want to work on their marital issues. Perhaps you will gain clarity on what went wrong and seek therapy that leads you to reunite.

If you do decide to give your marriage another chance, your separation agreement will generally be considered void. The best thing is to consider the chance of reconciliation when drawing up the agreement.

You can include provisions that would clarify what will become of the agreement if you get back together.

Get Legal Advice About Your Separation

Nobody walks down the aisle and builds a life together believing it will all end in divorce. 

Divorce might go against everything you believe in, or you might just need more time to accept that your relationship is over. Now that you know how to file for legal separation in Illinois, you can see that you have other options.

Legal separation can allow you to live apart without the finality that comes with divorce. 

Contact us if you are considering separation and need legal advice. 

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