Legal Separation vs. Divorce in Illinois

 Posted on December 06, 2013 in Family Law

If you are considering marital dissolution but do not want to divorce for one reason or another, legal separation may be your best option. A legal separation is a permanent change to your marital status akin to divorce, and is recognized in the eyes of the law. A non-legal separation is one in which one spouse moves out but no legal action is taken. While it is not imperative to seek the counsel of a family law attorney in the event of a non-legal separation, living apart may affect your legal rights and so it is advisable to seek the counsel of an attorney before moving out.

Legal separation, according to The Chicago Bar Association, is “a formal arrangement set forth in an order or judgment approved by a judge. The order or judgment will set forth rules under which a husband and wife may legally live apart and will detail the responsibilities and obligations of each.” The marriage, however, does not technically end, and jointly held property will not be divided in the event of a legal separation. Because the marriage is not technically dissolved, neither spouse may remarry until the legal separation is made final through divorce.

Because legal separation and divorce can take equally as long and both provide for arrangements such as alimony, child custody, and child support, it may seem a moot point to legally separate instead of divorce. Many couples opt for legal separation instead of divorce because in some cases they are able to continue to share medical insurance. If either spouse is terminally ill, this may be a crucial aspect. Other couples may decide a legal separation is their best option because of moral or religious beliefs that decry divorce.

For a judge in Illinois to approve a legal separation, it must be provable that neither party is at fault for the split. While neither party can flatly oppose the separation for it to be sanctioned by the court, a judge can resolve contested issues, such as those regarding child support, maintenance, and custody arrangements.

If you or someone you know is considering divorce and think legal separation may be a better alternative, don’t go through it alone. Contact a qualified family law attorney at Martoccio & Martoccio today.