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How Does Legal Separation Work in Chicago?

How Does Legal Separation Work in Chicago?

By: M. Scott Gordon

When Chicago residents are considering divorce, most decide to separate, which often involves one of the spouses moving out of the marital home and into a new residence. In some cases, these married couples might have heard that they should seek a legal separation before getting divorced. What is a legal separation under Illinois law? And how can a Chicago legal separation benefit couples who are planning to file for divorce?

Learning About the Difference Between Illinois Divorce and Legal Separation

The first question you may want to ask is this: what is the difference between a divorce and a legal separation in Illinois? Both divorce and legal separation are governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/). When a divorce is finalized, the divorce puts a legal end to the marriage. The parties no longer have a legal obligation to one another as spouses—although there may be a legal obligation with regard to spousal or child support. Once a divorce has been finalized, the parties are free to marry other people, and they can begin identifying as “single” as opposed to “married” on documents like tax returns. Legal separation is different. When a couple is legally separated, they are not free to marry other people, and the law continues to classify them as married.

Why would a married couple seek a legal separation? In some situations, the couple wants to have something official that clarifies their relationship as one in which they are no longer sharing certain aspects of marriage. More often than not, however, parties seek a legal separation in order to have the court allocate parental responsibilities and make a decision about child support (when there are children from the marriage), and sometimes to make a decision about spousal maintenance. In some cases, the court also can divide marital property as it would in a divorce.

If you obtain a legal separation, you can file for divorce later on, if you so choose.

Illinois Law on Legal Separation

How does the law define a legal separation in Illinois? The definition of legal support is framed in terms of giving parties a path through which to obtain child support and spousal maintenance:

“Any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they live apart.”

How can you seek a legal separation? First, you and your spouse must be living “separate and apart” according to the law. You also must meet certain residency requirements—typically you must have resided in Illinois for more than three months. Once you have met the requirements to obtain a legal separation, you must file for legal separation in a manner that is similar to filing for divorce. Keep in mind that a judgment for legal separation is not automatic. In cases where the court determines that child support and/or spousal maintenance are appropriate, it can enter a legal separation judgment that clarifies what type and what amount of support or maintenance must be paid.

When can a court divide marital property in a legal separation? In short, both parties must come to an agreement that the court should enter a property settlement. When the court does so, the statute specifies that it is “final and non-modifiable.”

Contact a Chicago Legal Separation Attorney

In brief, a legal separation may be helpful if you need the court to enter a judgment concerning support, maintenance, and parental responsibilities. An experienced Chicago legal separation lawyer can help. Contact M. Scott Gordon & Associates to learn more about how we can assist with your case.