An Alternative to Divorce: Legal Separation

 Posted on March 29, 2019 in Divorce

Divorce is a huge decision and step in a person’s life. Once a divorce is granted, a couple’s marriage is over, and it brings significant changes to finances, child custody, and living arrangements. Every relationship faces challenges at some point, and needing a break to assess whether the marriage can work is not uncommon. Some spouses may not be ready to file for divorce, but still need some structure for parenting issues, property rights, and financial support.

One option at this juncture is a legal separation. While it can ultimately lead to divorce, that outcome does not always occur. Couples who enter into legal separation agreements are still legally married and cannot remarry or finalize certain aspects of dissolving the marriage without seeking a divorce. In other words, legal separation is revocable, whereas divorce is not once granted.

Breakdown of Legal Separation

Legal separation is a court-approved action that recognizes and formalizes the physical and financial separation of a couple as they consider reconciling or getting divorced. It differs from physical separation, in which a couple simply agrees to live apart, by creating an enforceable agreement binding the spouses to certain terms related to parenting, child support, alimony, and property division. In order to qualify for this legal remedy, at least one spouse must have resided in Illinois for at least 90 days and the couple must be living apart. This procedure is still available even if one spouse does not presently live in Illinois, but if he/she never lived in the state, the court will not be able to settle issues of child support and maintenance. Additionally, in order for the court to have authority to order a parenting plan, the child must have lived in Illinois for at least six months. Further, the parties must agree on the division of marital assets and debts for it to be included in the court’s order. Otherwise, this issue will remain open and unsettled. Another important point to understand is that any award for spousal maintenance will be revisited if a divorce case is later filed, with no impact from the earlier award on the divorce proceeding. Only in instances where a couple agreed to non-modifiable alimony would this treatment not be applied.

Legal Separation vs. Divorce

As noted, legal separation does not end a marriage, and thus, gives the couple time to reconcile in a controlled manner. If divorce does come, the legal separation agreement that governed the time the couple lived apart while married could be used to form the basis of the final divorce settlement. As a result, many of the complicated issues of divorce would already be settled, meaning less expense, time, and stress. This may provide the alternative a couple needs to repair their marriage, or at least give them the ability to say they tried everything to save the relationship.

Seek Legal Advice from a Wheaton, IL Divorce Attorney

Admitting there are problems in your marriage is not easy, and sometimes, taking time away from one another is necessary to gain clarity on whether to stay together or get divorced. If you are contemplating a legal separation, talk to an experienced divorce attorney today. The dedicated DuPage County divorce lawyers at the Andrew Cores Family Law Group know how to structure a legal separation so it both supports you during this time and streamlines divorce if that choice is ultimately made. Contact us at 630-518-4002 for a free consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K402