Some people aren’t ready for divorce and are interested in a legal separation. A legal separation is more than just living apart – it’s a legal status.
As a Lake County, Illinois uncontested divorce lawyer, I know that “legal separation” can be confusing. Many people are interested in an uncontested legal separation, or a legal separation by agreement.
Therefore, I wrote this FAQ about legal separation in Illinois.
What is a legal separation?
A “legal separation” is a legal relationship between two spouses wherein each is granted legally enforceable rights by a Court, similar to a divorce, but are not actually divorced. In Illinois, legal serparation is governed by Section 402 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/402).
It is important to take note that people often say the are separated, but they are not legally separated. Once can only get a “legal separation” by court order – not simply be living separate and apart.
Why do people get a legal separation?
There are several reasons why people may get a legal separation in Illinois instead of divorce or remaining married without a legal separation.
- Religious reasons: Some people’s religious beliefs are such that divorce is not acceptable. So although two spouses might want to separate their lives as much as possible, they do not want a divorce.
- Financial reasons: Spouses may want to get divorced, but could have financial reasons for staying married, such as tax status. Furthermore, there could be financial benefits to legal separation, such as cutting off liability for the other spouse’s actions.
- One more step towards divorce: Not surprisingly, sometimes one person wants to get divorced, and the other doesn’t. I have at times see the spouse who wants the divorce convince the other to get a legal separation. They think this puts divorce one step closer.
- Clarity of legal rights: Sometimes married couples don’t want a divorce, but live totally separate lives. They even agree on the payment of child support, and maintenance. However, unless those financial aspects of divorced are in a court order, the agreement between the spouse is not enforceable in court. Therefore, spouses sometimes use a legal separation to get clarity and enforceability.
Who can get a legal separation?
If you are married and one of you has been living in Illinois for 90 days then you can get a legal separation in Illinois.
What can a court order while a legal separation case is pending?
If your case is agreed, as in an uncontested legal separation, the Court can order certain relief before the judgment for legal separation has been issued.
The relief the court can order is as follows:
- Spousal maintenance
- Child support
- Parenting time with a child
- Allocation of parental responsibilities
- Enjoin a party from removing a child from the state
- Enjoin a party from striking or interfering with the personal liberty of the other party or of any child
- Enjoin a party as appropriate under the circumstances
Please note that the Court must have subject matter jurisdiction to order parenting time and and allocation of parental responsibilities. That means that the court must have the power to determine those issues. Whether or not the court has jurisdiction to hear child-related issues depends upon the Illinois Uniform Child Custody Jurisdiction and Enforcement Act (the “Illinois UCCJEA”). If your child has lived in Illinois for less than six months, or there are other unique interstate issues, you will need to contact a lawyer with significant expertise in the UCCJEA to determine whether or not the child-related issues are something an Illinois court can determine.
Can a court order support in a legal separation?
Yes, a court can order support in a legal separation in Lake County, Illinois – that means both child support, and spousal maintenance (formerly “alimony”).
However, you shouldn’t think that getting a legal separation somehow “locks in” figures for child support or spousal maintenance. First, child support is always modifiable. Spousal maintenance will be modifiable unless the separation includes provisions that it is not.
Long story story, a judgment for legal separation does not necessary “lock in” figures for child support and spousal maintenance in the case of a subsequent divorce in Illinois.
What happens to property in a legal separation?
The separation of property, assets and debts is an area in which legal separation differs substantially from getting a divorce. In a divorce, people can either agree to separate their property and debt, or the court can order division after a trial.
However, in an Illinois legal separation, the Court m the Court cannot value or allocate property unless there is a legal separation settlement agreement (“LSSA”).
In other words, in terms of an Illinois legal separation, no agreement = no property/debt division.
You may not think that’s as problem because both of you “don’t have any property together.” But if you are married, I am almost 100% confident that you actually do have property together. Let me explain.
When people are married, there are three “estates” that contain property and debt. The estates are as follows:
- The non-marital estate of Spouse 1
- The non-marital estate of Spouse 2
- The marital estate – this contains everything not in estates 1 and 2 above
The marital estate contains all assets and debt that is acquired by either spouse during the marriage – except for property that is classified as non-marital.
Property is non-marital if:
- A prenuptial or postnuptial agreement states it is nonmarital
- Acquired by gift or inheritance
It doesn’t matter whose name is on a piece of property, or who acquired it. For example, take a married person who earns money from a job, then puts that money into a bank account with only that person’s name on it. Absent a prenuptial agreement that states otherwise, that money is part of the marital estate, and therefore “marital property” because it was earned during the marriage.
All that being said, the Court can separate assets and debt in a divorce if both parties execute a settlement agreement that the Court finds acceptable. Finding an agreement acceptable means that the Court finds it “not unconscionable;” that basically means that the agreement is not offensive the court’s sense of fairness and is not against public policy.
What about liability for other party’s actions?
Many people get divorced because a spouse is draining their finances, or causing some other type of liability.
An Illinois legal separation cuts off liability for the other spouse’s actions that occur after the legal separation.
However it is important to know that liability that arose before the legal separation can still be problematic for both spouses, regardless of what is stated in any legal separation agreement. The reason is that third-party creditors who entered into agreements with both of you (before legal separation) are not a party to the legal separation – and therefore, they could come after both of you even after a legal separation. That being said, an Illinois legal separation agreement can assign the responsibility for pre-separation debt to one party or the other, it’s just that if the party responsible for the pre-separation debt doesn’t pay, the creditor may still come after the other party.
As a side note, sometimes people who are very concerned with liability issues require consultation from a bankruptcy or tax lawyer.
What is the cost of a legal separation?
An uncontested legal separation can be fairly fast and affordable, like an uncontested divorce in Illinois.
On the other hand, people can fight about legal separation just like they fight about divorce (for the most part). For instance, there could be fights about maintenance, child support, parenting time, etc.
Further, you should know that getting a legal separation can, in the long term, increase your legal costs. You will incur some costs for the legal separation, then if you want to eventually get divorced, you will incur some costs again.
However, there are some strategic reasons why a person might want an Illinois legal separation. If you think it might be right for you, it’s best if you speak to an Illinois legal separation lawyer.
Why not just get an uncontested divorce?
Sometimes an uncontested divorce can be more a more appropriate measure than a legal separation. An uncontested divorce in Lake County can be fast, and affordable. Check out these 5 tips for a quick divorce in Illinois.
Whether to get a legal separation or an uncontested divorce really comes down to a personal decision.
Can a legal separation lead to a divorce?
People who get a legal separation in Illinois can still get divorced. In fact, they can still get a quick and affordable uncontested divorce in Illinois, just like anybody else can. A legal separation case does not restrict a person’s right to get divorced in the future.
Can a person remarry after legal separation?
No, a person cannot remarry after an Illinois legal separation? Why? Because legal separation does not end a marriage. Someone who gets a legal separation than marries enough person without a divorce is a bigamist.
How can I start a legal separation?
If you want a legal separation in Illinois, than you need to contact an Illinois legal separation lawyer. Otherwise, there is an extremely high changes that one of the following will occur:
- You will not get a legal separation
- Your legal separation will take much longer than you expect
- The terms of the legal separation will be something you did not expect
If you want a legal separation, you can contact me to get started. If everything is agreed, it can be a rather quick and affordable process.