When Should a Couple Consider Legal Separation Instead of Divorce?

 Posted on February 21, 2020 in Family Law

There are many different factors that influence the sustainability of a marriage. For many married couples, knowing whether it is time to formally end a marriage through divorce is not easy. One option that many married couples utilize when they are not ready to divorce is legal separation. However, it is important to understand that living apart or separating from your spouse is not the same as obtaining a legal separation. Couples that are legally separated are still technically married, but they gain much greater protection under the law than couples that are simply living apart. Some reasons you may consider legal separation include:

There Is Still a Chance for Reconciliation But You Want to Separate Finances

Divorce is a very definitive action. There is no undoing a divorce. If you and your spouse have had major marital trouble, but you believe that there is still a chance for you to reconcile in the future, a legal separation may be right for you. If you obtain a legal separation, you will be able to gain many of the benefits of divorce without actually ending your marriage.

When spouses are simply living apart, the spouses’ finances are still legally intertwined. This means that a spouse may be responsible for the consequences of the other spouse’s financial decisions during the physical separation period. Spouses who are legally separated are subject to a court order called a separation agreement that formally separates the spouses’ finances. Furthermore, a spouse is not responsible for debts accumulated by the other spouse after the legal separation has gone into effect. 

It should be noted that property will only be divided during a separation if the spouses can reach an agreement about the terms of the division. The court will not divide property on behalf of the couple. An experienced family law attorney can help you negotiate a property division arrangement if you struggle to reach an agreement on your own.

 During a legal separation, the court may also address:

• Allocation of parental rights and responsibilities (child custody) and parenting time (visitation)

• Child support 

• Spousal maintenance

You Want To Ensure You Have Access to Certain Benefits

There are several other reasons that spouses may want to obtain a legal separation instead of a divorce. For example, you may want to remain legally married so that you can meet the 10-year deadline for Social Security benefits or certain military benefits. There may also be major tax advantages to remaining legally married but separated. 

Sometimes, a person’s reasons for separating are personal instead of financial. Spouses may want to avoid divorce because of personal beliefs or for religious or cultural reasons.

Contact a Wheaton Legal Separation Lawyer

Only you can know if divorce is right for you or if legal separation is the better choice. An experienced DuPage County family law attorney can help you understand the advantages of each of these options given your particular situation so that you can make the best decision possible. Call The Stogsdill Law Firm, P.C. at 630-462-9500 and schedule a confidential consultation to discuss your needs.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=3700000&SeqEnd=5200000

https://www.ssa.gov/planners/retire/divspouse.html