Divorce Versus Legal Separation: What Are Their Similarities and Differences?
By: M. Scott Gordon
If you are having difficulties in your marriage, you might be wondering whether divorce is the right decision for you. For many couples, divorce is a difficult and complicated process, yet it provides a path toward happiness. Sometimes, spouses want to have some of the features of a divorce – without necessarily ending their legal relationship.
For many parties, it is essential to formalize the separation. For instance, if you have minor children from your marriage, you will need to have a parenting plan or an allocation judgment in place to make clear how parents will share time and responsibilities for the children. You also may need to have a court order in place for spousal support. In such scenarios, a legal separation may be ideal. What is the difference between a Chicago divorce and a legal separation in the Chicagoland area? We will discuss some of the basic similarities and differences below.
The IMDMA Governs Legal Separations and Divorces
Both a legal separation and a divorce are possible under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Not all states allow legal separations, but Illinois does.
Reasons for Choosing a Legal Separation Instead of Divorce
There are a variety of reasons a couple might want a legal separation instead of a divorce. For example, a married couple might want to live separate and apart, and they may want to build a life with a new partner, but they might have reservations about legally getting divorced for religious or financial reasons. If you decide to live separate and apart from your spouse — even for many years — but you never get divorced, you can continue to take advantage of certain financial benefits like jointly filing your taxes. If one of the spouses is on the other’s health insurance, those benefits do not go away if you remain married but indefinitely separated (in most circumstances). These kinds of benefits stop once a divorce is finalized.
To be clear, couples move toward both legal separation and divorce for similar reasons (i.e., problems in the marriage), but they select a legal separation instead of a divorce for very different reasons.
Legal Separation Does Not End the Legal Relationship – Divorce Does
The major difference between a legal separation and a divorce is divorce ends the legal relationship while a legal separation does not. We mentioned some reasons above that this distinction can make a significant difference for the parties involved.
Both Allow the Court to Allocate Parental Responsibilities
Whether parents have a legal separation or a divorce, the court can allocate parental responsibilities, including parenting time. Accordingly, the parents can have a clear parenting time arrangement, which is enforceable in court.
Legal Separation and Divorce Orders Can Be Modified
If there is a significant change in circumstances for either spouse, both legal separation and divorce orders may be modified
Spousal Support is Possible with Legal Separation and Divorce
Both a legal separation and a divorce allow the court to order spousal support. Accordingly, even if you do not want to legally end your marriage, you can still be eligible to seek spousal support in a legal separation.
Both Legal Separations and Divorces Require Help from a Lawyer
Whether you are seeking a legal separation or a divorce, it is essential to have a legal advocate on your side. A Chicago area divorce lawyer can ensure the terms of your legal separation or divorce take your needs and wishes into account.
Contact a Chicago area Divorce Attorney