Legal Separation Vs Divorce

Frequently Asked Questions About Legal Separation and Divorce in Illinois

What is the difference between legal separation and divorce?

Legal separation is a legal process that allows spouses to live apart while addressing critical issues such as child custody, support, and the division of property without dissolving the marriage itself. This option can be appealing for those who have personal, religious, or financial reasons for not wanting to end their marriage completely. Conversely, divorce, also known as the dissolution of marriage, is the legal termination of the marital union, allowing both individuals the freedom to remarry in the future. While divorce is an irrevocable step, legal separation offers a temporary solution that can provide time and space for reflection.

Is legal separation recognized in Illinois?

Absolutely. Illinois law recognizes legal separation under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/402). Through this legal framework, spouses can petition the court for a legal separation. The court is empowered to issue orders that address significant matters such as the allocation of parental responsibilities, parenting time, child support, and spousal maintenance. It’s important to note, however, that the court cannot divide marital property in a legal separation unless both parties mutually agree to do so.

Do I need to live separately before filing for divorce?

Not necessarily. Illinois is classified as a no-fault divorce state, meaning that the only legal ground for filing for divorce is the presence of irreconcilable differences. If both spouses are in agreement about the divorce, there is no requirement for a separation period. However, if one spouse contests the divorce, the court may require evidence demonstrating that the couple has been living apart for a minimum of six months.

What are the residency requirements?

To initiate a divorce or legal separation in Illinois, at least one spouse must have been a resident of the state for a minimum of 90 days preceding the filing. The divorce case must be filed in the circuit court of the county where either spouse resides, establishing jurisdiction for the proceedings.

Can legal separation be converted into divorce?

Yes, a legal separation can be transformed into a divorce. To do this, one must file a petition for dissolution in court. During the conversion process, any agreements that were established during the period of legal separation—including parenting plans or support orders—can be incorporated into the final divorce decree, subject to the court’s approval.

How is property divided in divorce vs. legal separation?

In the context of divorce, Illinois employs the principle of equitable distribution, meaning that marital property is divided fairly, though not necessarily equally. This encompasses all assets acquired during the marriage. In legal separation, however, the court can only oversee the division of property if both spouses agree to address this issue. It’s vital to understand that non-marital property, such as inheritances, gifts, or assets obtained before the marriage, is generally not subject to division.

What about spousal support?

Spousal maintenance, commonly known as alimony, can be awarded in both legal separation and divorce proceedings. When determining the amount and duration of spousal support, the court considers several key factors, including the income and needs of each spouse, the length of the marriage, the standard of living enjoyed during the marriage, and the age and health of both parties. For couples with a combined income of less than $500,000 annually, Illinois has a statutory formula for calculating spousal maintenance.

How are child custody and support handled?

In Illinois, traditional terminology such as custody has evolved into a more comprehensive framework involving the “allocation of parental responsibilities” and “parenting time.” This reflects the state’s commitment to prioritizing the best interests of the child. Both legal separation and divorce courts aim to ensure that children’s welfare is central to the proceedings. Child support is calculated using the Income Shares Model, which takes into consideration both parents’ income levels and the amount of time each parent spends with the child.

Do I need a lawyer?

While it is not mandatory to have legal representation, it is strongly advised, especially in situations involving children, property disputes, or financial support matters. An experienced attorney can provide invaluable assistance by protecting your rights, crafting legally enforceable agreements, guiding you through complex court procedures, and negotiating settlements that are favorable to you. Having expert guidance can alleviate much of the stress associated with this challenging process.