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Legal Separation

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What is Legal Separation in Illinois?

There is an important difference between “being separated’” and a legal separation proceeding in Illinois.  In Illinois, legal separation is a legal proceeding that is initiated like a divorce with the filing of a pleading in the appropriate county.  Unlike a divorce, legal separation means the marriage is not legally over. Spouses are still married and cannot marry someone else. A legal separation leaves the couple in limbo and is, therefore, rarely used.  In a legal separation proceeding, a court may determine temporary child support and spousal maintenance. The court can only divide property if both spouses agree and make the appropriate request.

Legal separation can be expensive and time-consuming, and it is not necessary for most couples.   There are limited situations where your attorney may suggest a legal separation.  For example, legal separation may be an appropriate option for couples whose religious beliefs prevent them from divorcing.   Another situation where a legal separation may be appropriate is to protect assets from creditors when one spouse needs long-term care.  A legal separation is generally not appropriate for someone who is not quite ready to file for divorce.

Do I Need to Request a Legal Separation Before I Can Get Divorced in Illinois?

In Illinois, there is no need to obtain or request a legal separation before or during a divorce.  However, couples contemplating divorce frequently separate long before a divorce action is ever filed or before a divorce is granted.  This is “living separate and apart” and is a requirement before a divorce can be granted, but does not require an independent legal proceeding.  Under Illinois law, a divorcing couple must be living separate and apart at the time of the divorce.  A legal separation, as discussed above, is different and generally not appropriate for couples who intend to divorce or are in the process of divorcing.

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