What is the Difference Between Legal Separation and Divorce in Illinois?

Wheaton Family Law Attorneys

While the most common approach to solving seemingly irreconcilable differences between married couples is divorce, legal separation is another, less permanent option some individuals consider. Being physically separated from your spouse and being legally separated from your spouse are two entirely different things; with a legal separation, you are living apart, but still legally married. The court can order a separation and also include aspects such as child support and custody arrangements for the separation time period, much like a court would for a divorce. Hiring an effective legal advocate well-versed in family law that can help explain this process to you is the greatest way to ensure the best possible outcome given your family's unique situation.

Benefits of Legal Separation

Overall, legal separation is a less extreme remedy than divorce. It can provide couples that need time apart some space before making the ultimate decision of whether or not to actually get divorced. Couples may have situational difficulties such as financial problems, health issues, problems caring for children, or communication concerns. There is also the possibility of children's illnesses or family deaths, which can be very difficult on a married couple.

In a legal separation, the couple remains married in the eyes of the law. The individuals cannot re-marry during this time, nor can they commit acts of adultery. One of the two conditions for legal separation is that you cannot have been at fault for the separation (consider: abandonment, or leaving your spouse for over a year, or adultery). The other condition is that you must be living physically apart from your spouse. When requesting a legal separation from the court, both of these things must be proven in order to be eligible for the legal separation. Either party to a marriage can file a Petition for Separation.

Once filed, the court can consider many of the same things they would as if the separation were a divorce proceeding. The court may consider the division of assets, child support, custody, and visitation rights of the parties. This is important because unlike simply deciding to live apart, taking the legal recourse to separate allows for financial benefits and an approach for splitting time with any children. If the parties eventually decide to file for divorce after the separation, then many of the details may already be worked out, making the divorce a smoother process.

Separation vs. Divorce

Divorce is a final, binding decree that ends a marriage. All assets must be divided, the court must decide how custody, child support, or spousal maintenance shall be approached and the parties must separate their personal and real property in accordance with an agreement issued by the court.

Couples that have problems that cannot be reconciled may require immediate divorce. However, filing for a legal separation may be a viable alternative transition, even if you believe you will ultimately file for divorce. Some time apart will provide perspective, give you some time alone while your kids are visiting their other parent, and will give you the opportunity to decide what you really want. Legal separation is less emotionally taxing than divorce because it lacks the permanence of a divorce while still allowing for the legal relationship to exist between the parties.

Most couples are capable of compromising or at least taking a specified time to attempt to reconcile their differences. A legal separation is a remedy for troubled marriages that is often overlooked, but proven very effective for many couples that try it. Even if the separation ultimately leads to a divorce, you can rest assured that you did everything that you could to try to repair your marriage.

Wheaton, Illinois Divorce Attorneys

Whether you are considering legal separation or divorce, it is critical to understand the implications that both have on your family. Hiring a skilled DuPage County family law attorney that can explain the nuances of separation, divorce, child custody, and spousal maintenance will make the process that much easier and will result in quicker settlements. At The Stogsdill Law Firm, P.C., we know how to navigate even the most complex family law cases. We understand the emotional and financial burden of going through a legal separation or divorce and keep our clients involved so they understand what is going on at every step of the process. Even if you are only considering divorce at this time, contact our Wheaton, Illinois law office at 630-462-9500 to protect your legal rights and assets and to learn more about your legal remedies.