Divorce vs. Legal Separation in Illinois: What’s the Difference?

 Posted on June 08, 2021 in Family Law

Divorce and legal separation are both processes married couples can use in Illinois to bring their relationship to an end. While they share some similarities, they are not the same and have very different outcomes. The fundamental difference between the two is that divorce legally ends the marriage, but legal separation does not. While you can pursue divorce and legal separation on your own, hiring an experienced lawyer can help streamline the process and avoid costly legal mistakes. 

Divorce

Divorce is a final, legally binding order that completely ends a marriage. Under Illinois law, in a divorce, all assets must be divided. Issues like child support, child custody, and spousal maintenance must be legally settled by a court or by mediation. 

Depending on how complicated the divorce is, finalizing everything can take as little as 45 days but can also take many years. The cost of the divorce also depends on how complicated or contentious the issues are. When spouses cannot agree, the court will have to intervene and make decisions for them. This requires attorneys for both parties, filing fees, and sometimes other professionals like custody evaluators or guardians ad litem. Accordingly, the cost of divorce can reach into the hundreds of thousands. 

Of course, an uncontested divorce – where both parties agree to the divorce and can agree to resolve all the issues – is the shortest, least expensive type of divorce. 

Legal Separation

Like divorce, legal separation begins by filing a formal petition with an Illinois court. Similarly, couples can resolve issues like child custody and property division, and these agreements are legally binding. The crucial difference between legal separation and divorce is that, while divorce ends the marriage and leaves both parties free to marry again, legal separation does not dissolve the relationship. 

This gives couples the opportunity to reconcile throughout the process of the separation. Although most couples will typically choose to divorce, legal separation gives couples more time and space to negotiate their marriage if they are not completely sure that the relationship has reached its end. 

Couples may use the time for a legal separation as a sort of “trial run” to see if divorce is really what they want. They may want to see if they function better as two separate households rather than one, or they might try to see if separating would create a more stable environment for the children.

There is no time limit for separation in Illinois, so spouses can continue indefinitely if they wish. However, if both spouses decide to end the separation in divorce, they will have to wait until the court finalizes the separation process so they can file for divorce. 

Do We Have to Live in Separate Housing? 

With both divorce and legal separation, parties do not necessarily have to live in different houses. Moving and maintaining two separate homes is expensive and many couples may not be able to sustain such an expense. Per Illinois law, a couple is considered to be living “separate and apart” if they are living in separate parts of the home and/or sleeping in separate beds. However, in order to petition for either legal separation or divorce, at least one spouse must have lived in Illinois for at least 90 days. 

Contact a DuPage County Divorce Lawyer Today

Whether you decide that a divorce or legal separation is right for you, Illinois law can be difficult to understand and the process may be long and complex. Hiring an attorney experienced in family law can help you avoid mistakes and make sure your interests are represented. Contact a Hinsdale, Illinois family law attorney from Martoccio & Martoccio Family Law at 630-920-8855 for a confidential consultation and get the help you need. 

Source: 

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+IV&ActID=2086&ChapterID=59&SeqStart=3900000&SeqEnd=5400000