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How Is a Legal Separation Different From a Divorce?

 Posted on November 20, 2023 in Family Law

Untitled---2023-11-20T093850.354.jpgThere are many situations where marital relationships may break down. Even though a couple intended to remain together for the rest of their lives when they got married, they may experience changes over the course of their relationship, or they may find that they are no longer compatible. When a marriage begins experiencing problems, one or both spouses may begin considering whether getting a divorce is a good idea. However, if a couple is not yet ready to end their marriage, or if they wish to remain married even if they are no longer in a committed relationship, legal separation may be an alternative option.

In the realm of family law, legal separation is an alternative to divorce that offers couples the opportunity to live apart without terminating their marriage. While divorce permanently dissolves a marriage, legal separation allows spouses to separate their lives while still remaining legally married. There are a number of reasons why a couple may wish to use this option, and anyone who is considering making these types of changes to their life will want to consult with an attorney who can provide qualified legal guidance and advice on how to proceed.

The attorneys of Weiss-Kunz & Oliver, LLC provide representation in a wide range of family law matters, including both divorce and legal separation cases. We can help you understand whether legal separation may be a good idea or whether divorce may be preferable. We will provide you with representation as you negotiate agreements with your spouse, ensuring that your rights and interests will be protected as you make changes to your life and in the years to come.

Reasons for Choosing Legal Separation

Couples may choose a legal separation instead of a divorce for a variety of reasons, including:

  • Trial period: Some couples use a legal separation to assess whether they want to proceed with a divorce or whether it may be possible to reconcile. During their separation, they may live in separate homes and begin establishing independent lives. This can give them an idea of whether they may want to take the final step to end their marriage through divorce or whether they may want to work on their relationship and see if they can make their marriage work.

  • Religious beliefs or cultural practices: In some cases, couples may not want to get divorced because it would be frowned upon by their families or others in their communities, or they may have religious beliefs that discourage divorce. Legal separation can be an appealing option in these situations. It will allow a couple to uphold their values while establishing boundaries and living separate lives.

  • Healthcare and other benefits: Marriage may provide one or both spouses with certain benefits, such as health insurance coverage or eligibility for Social Security benefits. If a divorce would put one or both spouses in a difficult position and leave them without necessary financial resources, remaining married and obtaining a legal separation may be a preferable option. 

  • Financial considerations: Legal separation can be an attractive option for couples who wish to maintain certain financial benefits, such as tax advantages that come with filing joint tax returns as a married couple. Married spouses may also be able to maintain eligibility for government assistance programs, and legal separation may ensure that they can avoid financial issues.

  • Military considerations: Members of the military may opt for legal separation due to the difficulty of addressing divorce-related issues during deployment. Legal separation may also allow a spouse to maintain military healthcare benefits or share in pension payments that will allow them to support themselves later in life.

Legal Separation Laws in Illinois

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) details how divorce and legal separation cases will be handled. These cases involve similar procedures, and the decisions made in a legal separation case will address many of the same concerns that couples may face during a divorce. When pursuing a legal separation, a spouse will file a petition that is similar to a petition for divorce, and the couple will then negotiate a separation agreement that will cover many of the same issues that would be addressed in a divorce settlement or decree.

The primary difference between legal separation and divorce is that a couple will continue to be legally married after their separation agreement is put in place. The separation agreement will be a legally binding court order that spouses will be required to follow. However, since a legal separation does not have the finality of a divorce, a couple may choose to reconcile and end their separation, and they may then set aside their separation agreement and resume their previous arrangements as married spouses.

Issues Addressed in a Legal Separation

When a couple gets a legal separation, they will live independently from each other and separate various aspects of their lives that had been combined while they were married. Even though a couple will continue to remain married, they will need to make decisions about how various issues will be addressed during and after their separation. Just as they would if they were getting a divorce, a couple will need to address concerns related to:

  • Property division: Illinois is an equitable distribution state. This means that marital property (property acquired during the marriage) will be divided fairly, but not necessarily equally, between the spouses. When negotiating a separation agreement, a couple will need to determine how to handle ownership of all of their marital property, which may include physical belongings and household items, their family home or other real estate property, funds in shared bank accounts, investments and retirement funds, vehicles, valuable items such as artwork or jewelry, and business interests. Notably, Illinois law states that in a legal separation case, a judge cannot make decisions about how property will be divided. Instead, they may approve an agreement made by a couple or reject an agreement that is deemed to be grossly unfair to one party. This means that a couple that is planning to legally separate will need to work together to negotiate a property division agreement that will be acceptable for both parties.

  • Child custody and visitation: If a couple has children, they will need to determine how they will share custody of their children after their legal separation. As in a divorce, child custody arrangements will need to be established. Parents will need to address the allocation of parental responsibilities and determine how they will work together to make important child-related decisions. They will also need to create a parenting time schedule that details when their children will live or spend time with each parent. When putting child custody orders in place, a family court judge will consider various factors that may affect the best interests of the child, including the parents’ willingness to cooperate with each other, their level of involvement in parenting activities and decisions in the past, and the physical and mental health of all family members who will be involved in children’s lives going forward.

  • Child support: When parents split up, they will both have a duty to ensure that their children’s ongoing needs are met. They will need to address regular, daily expenses, such as food and housing costs, as well as any other expenses that may be required, such as medical expenses, educational fees, costs of daycare or other forms of childcare, and expenses related to children’s activities. During a legal separation, child support orders will be established based on the income that both parents earn, and these orders may also be affected by decisions about how parenting time will be divided. 

  • Spousal support or maintenance: There are some cases where a spouse may struggle to meet their ongoing needs after a separation because they have been a stay-at-home parent, because the other spouse earned the majority of the family’s income, or because they have health issues or disabilities that have affected their ability to maintain employment. In a legal separation case, one spouse may request ongoing financial support from the other party. If a spouse is eligible for spousal maintenance according to the factors detailed in Illinois law, ongoing support payments may be provided. The amount of these payments will be calculated based on the income earned by both spouses, and the duration of support payments will typically be based on the amount of time a couple was married.

Negotiating a Separation Agreement: Mediation and Alternative Dispute Resolution

When pursuing a legal separation in Illinois, couples have the opportunity to negotiate a comprehensive agreement that addresses various aspects of their separation. However, ensuring that a separation agreement fully addresses all legal issues that apply in a couple’s case can be difficult. While negotiations between spouses with the support of their respective attorneys may be one option for creating an agreement, other methods may also be used.

In many cases, couples may choose to use mediation or other forms of alternative dispute resolution (ADR) to reach mutually agreeable terms for their separation agreement. Mediation can provide a couple with the opportunity to work together to address all outstanding issues in their case with the assistance of a neutral mediator who will guide discussions and offer suggestions for how certain issues may be resolved. Collaborative law may be another option in which spouses can work together with their attorneys while making the commitment to be open and honest and negotiate agreements in good faith.

These processes offer several potential benefits compared to resolving disputes in the courtroom:

  • Control over the process: With mediation, a couple has greater control over the outcome of their case than they would in court. They can actively participate in decision-making rather than having decisions imposed upon them by a judge.

  • Cost-effectiveness: ADR generally costs less than litigating a legal separation case. By avoiding lengthy court battles and reducing attorney fees associated with court appearances and hearings, couples can save significant amounts of money.

  • Faster resolution: Mediation often allows couples to negotiate agreements and complete their cases more quickly than they could by handling issues in court. Couples have more flexibility in scheduling mediation or negotiation sessions based on their availability instead of waiting for court dates.

  • Cooperation: Collaborative processes like mediation encourage open communication between spouses. This fosters cooperation even during emotionally challenging times, and it can help a couple find mutually satisfactory solutions.

Contact Our Experienced Elmhurst Legal Separation Lawyers

If you are considering a legal separation, or if you want to know more about how to protect your rights and interests when separating from your spouse, it is essential to consult with an experienced family law attorney. A lawyer who understands the intricacies of family law in Illinois can provide guidance on the available options and the steps you can take to resolve disputes that may arise during your case. At Weiss-Kunz & Oliver, LLC, our knowledgeable DuPage County legal separation attorneys can provide you with effective representation as you negotiate a separation agreement, put child custody and child support orders in place, and establish a life separate from your spouse. Contact us at 312-605-4041 to arrange a consultation and learn how we can help you resolve issues related to divorce, legal separation, child custody, and more.


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