Legal Separation under the Illinois Marriage and Dissolution of Marriage Act (ILC 750)

legal-separationFor those Illinois citizens who are not quite ready for divorce but need time to contemplate the future status of their marriage, legal separation may be an alternative. Under Section 402, Part IV of Illinois Public Law, 750 ILC, legal separation is defined as any person who is currently living apart from his or her spouse but maintains the right to reasonable support and maintenance while doing so.

Although this may sound similar to an adult timeout from marriage, those opting for this recourse must first seek a court sanctioned legal separation by meeting specified legal criteria.

Obviously, the couple must live physically apart from each other as the petitioner must prove he or she is not primarily responsible for the separation. It is also noted that one spouse must document Illinois residency to achieve judicial oversight.

To petition for a legal separation, the couple may provide a written request of why a legal separation should be granted as this request requires circuit court approval. Determined a legal binding contract, the following terms and conditions must be addressed:

  • Alimony or Continual Maintenance;
  • Division of Assets and Liabilities; and
  • Child Custody and Support.

As separation agreements are drafted to protect each spouse and any children involved, the directives should be clearly defined to head off any conflicts. Achieving this may often prove complex and depends highly on the unique martial situation at hand.

Due to these complexities, It is highly advisable to consult with an experienced Illinois family law attorney to seek assistance rather than jeopardizing the future of the family by drafting an ineffective legal agreement.

Although Illinois residency is necessary to determine which circuit court will be assigned, the petitioning spouse is not bound by Illinois residency requirements. The spouse filing for judicial review may opt to file in either their county or their spouse’s county of residence.

Other criteria states that the petitioning spouse must make binding arrangements with the county sheriff's department to have the filed petition legally served. This action also requires the serving of an official summons to appear in court. Once received, the served spouse maintains the right to respond directly to the content of the petition and provide any relevant defense.

Once served and a hearing date has been established, the presiding judge will review the separation agreement and either grant the separation or deny the petition.

For those couples who opt for a legal separation rather than quickly decide to file for divorce or they are legally seeking a break to determine the stability of the marriage, reconciliation percentages appear grim. Ohio State University researchers established that at least 80 percent of all separated couples ultimately seek the services of a qualified legal team if surpassing the two year pivotal point of reconciliation.

If you are contemplating petitioning for a legal separation or have surpassed the point of reconciliation and have decided to divorce, the experienced Hinsdale divorce attorneys of the Law Office of Martoccio & Martoccio understand that your marital situation presents with unique challenges. Our skilled team, with over 75 years of combined legal experience, remain dedicated to providing all families with high-quality legal counsel with integrity and compassion. Contact our office at 630-920-8855 to learn more about our services today.


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