Separate and Apart – What Does it Mean?

 Posted on September 03, 2015 in Divorce

Divorcing on the grounds of “irreconcilable differences” is the avenue taken by many couples looking to divorce in Illinois. By claiming that “irreconcilable differences” exist, the couple is essentially telling the court that differences have developed between the two of them that make it impossible or, at the very least, impracticable for the marriage to continue. Divorcing on the grounds of irreconcilable differences in Illinois carries with it an accompanying requirement: the parties must show that they have been living “separately and apart” for at least six months before the divorce case can proceed. (If one spouse does not agree that “irreconcilable differences” exist, then the other spouse must show that the couple has been living “separately and apart” for two years.)

If the two spouses agree that irreconcilable differences exist and if they can agree on the date they began living “separately and apart,” then in most cases the court will accept the parties’ stipulation and will not conduct any further investigation into the matter. But if there is a disagreement between the spouses, one spouse will need to provide evidence establishing when the couple began living “separately and apart.”

Living Separate and Apart Does Not Require Separate Residences

Although the term seems to suggest otherwise, it is not essential that the spouses be living in separate physical locations in order to be considered living separate and apart. In fact, spouses can continue living in the same house as each other and still be considered living separate and apart. A key question a court will consider is how the spouses were living with one another if they remained in the same house. For example, if the spouses were living in the same house and operating as a married couple, it will be difficult to show they were living separate and apart during that particular period. But if the couple looked and lived more like roommates than like spouses, a court will be more likely to find that they were living separately and apart.

What Evidence Is a Court Looking for When Looking to Establish When a Couple Began Living Separately and Apart?

Your claim that you and your spouse began living separately and apart on a certain date must be supported by certain objective behavior. As mentioned above, this behavior must generally show that you and your spouse ceased functioning as a married couple and began acting more akin to roommates. Evidence may include things like:

• Lack of sexual intimacy with your spouse;
• Closing of joint financial accounts and the opening of individual checking and savings accounts, credit cards, etc.; and
• Taking vacations without your spouse.

Contact our Illinois family law attorneys for help in preparing and presenting your divorce petition. Oftentimes we can establish whether your spouse will stipulate to a finding that irreconcilable differences exist and that you have been living separately and apart for six months before your divorce petition is heard by the court. Where your spouse is contesting a finding of irreconcilable differences, we can assist you in presenting evidence concerning when you and your spouse began living separately and apart. Contact our skilled DuPage County family attorneys today at 630-871-1002 for assistance with your Illinois divorce.   Sources: http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=3700000&SeqEnd=5200000