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Following a 2016 change in Illinois law, couples who are seeking a divorce in Illinois no longer need to have a waiting period before finalizing their divorce. However, a waiting period of at least six months is only waived if both parties agree that there are irreconcilable differences and neither party objects to the divorce.
If spouses cannot agree that there are irreconcilable differences, or if one spouse objects to the other spouse petitioning for divorce, they must follow a law that requires them to live separate and apart for six months or longer before the divorce can take place. The legal standard of separate and apart is intended to show that divorcing couples have irreconcilable differences and that divorce is the most appropriate option.
However, couples may be confused about what exactly constitutes separate and apart – especially because couples do not necessarily have to live in different houses to meet that standard. Here, we discuss some common questions that divorcing couples may have as they navigate the divorce process.
Interestingly, the beginning of a couple living separate and apart - known as the “separation date” - might be different for each person in the relationship. For example, if one party starts a new relationship, with or without the other party’s knowledge, that would typically signify the breakdown of the relationship and therefore qualify as their separation date. Or, if one party decides that they are no longer willing to be intimate as a couple, the separation date could be from the beginning of the time they cease being intimate together.
Regardless of whether the exact separation date is the same for both members of the marriage, as long as they can agree that the date is at least six months prior to the date on which they file for divorce, there doesn’t have to be an agreement over exactly what the separation date was.
You do not have to establish separate residences to show you are living separate and apart. This was made especially evident during the coronavirus pandemic, when shelter-in-place orders and many people being out of work made it very difficult for separating couples to move out.
Even if you choose to remain living together because you cannot afford two separate households, you can live separately under one roof. However, it is best to live in separate parts of the house – continuing to share the marital bed may make it difficult to prove that couples are living separate and apart.
Attempts at reconciliation do not invalidate the original separation date. If, for example, one person had an affair and their spouse found out a year later, the couple could attend therapy and attempt to reconcile their differences before ultimately deciding on divorce. In this case, the date the affair began could still be considered the separation date.
Circumstances surrounding separation vary, and it is important to know your rights and obligations under Illinois law. Consult with a DuPage County divorce attorney to discuss your situation and avoid costly mistakes during the divorce process. The legal team at Martoccio & Martoccio Family Law can help you streamline your divorce and move forward with your life. Contact us today for a confidential consultation at 630-920-8855.