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Legal Separation vs. Divorce: How To Make The Best Decision

Glen Ellyn Divorce Attorney

Legal separation and divorce are both legal processes by which a married couple can end their marriage under Illinois law. While they are very similar in terms of procedure, they are very different in the outcome - divorce effectively ends the marriage while legal separation does not.

What Is a Legal Separation?

Chicago Divorce Attorney

Legal separation is a court-approved agreement between two spouses to live separately from each other, both physically and financially. While there are many similarities between separation and divorce, in terms of division of assets, spousal or child support, and visitation, with legal separation you remain married to your spouse. Neither of you can remarry, unless the court converts the legal separation into a formal divorce, and you can still inherit from each other.

There are many different reasons why you may choose a legal separation vs. divorce, ranging from financial benefits to religious beliefs, but ultimately ending a marriage is a life-changing step just as much as starting one is, so there is no right way to navigate it. The most common reasons couples may choose legal separation are:

  • Religion: many couples’ religious or even philosophical beliefs make divorce an undesirable option. In such cases, court-approved separation is the best way to physically and financially separate yourself from your spouse without defying or disregarding these beliefs. In certain instances, legal separation can also help avoid the social stigma associated with divorce.
  • Finances: in some cases, there are tax benefits, social security benefits or even health insurance benefits that couples can still enjoy through legal separation that would otherwise become unavailable through a divorce.
  • Trial runs: the majority of couples filing for legal separation use it as a trial run for divorce. It follows the same procedures and it creates the same space between spouses, but it feels less final. Also, if you’re not sure you want to divorce, the separation process can give you perspective and allow you the time and space to decide.

How To File For Legal Separation

Under Illinois law, filing for legal separation is not that different than filing for divorce. You have to obtain a court judgment that states the new legal status, and the terms and conditions of the separation. Here are the steps:

  1. File a petition - you need to file a Petition for Separation with the Circuit Court in the county where your spouse resides, OR you and your spouse last resided as husband and wife; OR if your spouse cannot be found in Illinois, the county in which you reside.
  2. Allow for a response - a copy of the filed petition and a summons to appear in court will be served to your spouse, who has the option to file a response.
  3. Attend the hearing - you’ll have to provide the court with a legal reason, also called grounds, for the separation. You and your spouse can negotiate the issues pertaining to legal separation, such as division of property and debt, child custody and support, or spousal support, but you both will be bound by the court order once it is signed by the judge.

Divorce in Illinois: How Is It Different From Separation?

Chicago Divorce Lawyer

Divorce in Illinois is a final, legal binding mandate that ends a marriage. Just as with legal separation, Illinois divorce laws state that all assets must be divided, and issues like custody, child support, or spousal maintenance must be decided by the court. It is different because of two main factors: irrevocability and financial issues to be decided. “In a legal separation, certain relief is not available”, says Maxine Weiss Kunz, Founding Member and Partner of Weiss-Kunz & Oliver, LLC. “Sometimes in a divorce, we need to freeze assets if one party cannot be trusted. You can't do that in legal separation.”

Another distinction Weiss-Kunz notes is that “in a legal separation, you have to live separately, in a divorce you can live in the same house."

In terms of length, from filing to having a court decision, “a divorce can take anywhere from 45 days to 18 months on average, depending on whether it’s cooperative, uncontested or contentious”, explains Kunz. “In a highly contentious case it can be even 2 years to get to trial", she adds.

“How much does a divorce cost?” is one of the most asked questions when couples first think about the dissolution of marriage. Of course, the answer depends on the specifics of each individual case, the cost usually goes up when child custody issues and child support are involved. The filing fee, which differs from county to county, the attorney fees, the child issues, spousal support, and division of property issues can all influence the cost.

An uncontested divorce will end up being more cost-effective than a contested divorce with trial court litigation. The cost varies greatly depending on the complexity of the case, “from single-digit thousands to double-digit thousands,” says Kunz.

How To File For Divorce

Illinois is a no-fault state, which means either spouse can file for dissolution of marriage. While the court is not interested in who is at fault, it is, however, interested if the marriage is indeed beyond saving. This is why, in most cases, parties separate and live apart for at least 6 months before filing for divorce. The steps are quite similar with filing for legal separation:

  1. File the petition with the court - the more information you provide in your petition, and the more it proves that you and your spouse have talked about divorce and agreed on most of the issues, the less time the actual divorce process will take.
  2. Serve your spouse - you can serve your spouse with the petition for dissolution of marriage either by using the County Sheriff's office or a private process server, the latter being the fastest of the two.
  3. Allow your spouse to answer - the divorce proceedings cannot move forward until your spouse files their appearance and an answer to your petition.
  4. Litigation - this process is usually the longest. If there are any disagreements between you and your spouse, it is during litigation that your attorneys will start building your case. The discovery phase in the litigation step refers to the collection of all documents and additional disclosures to help your case. It’s also the step where temporary orders may be entered, usually when minors are involved and the judge orders temporary child support or maintenance.
  5. Pre-trial & Trial - if you and your spouse are both represented by a divorce attorney, then the pre-trial phase is fairly short. It is when the judge gives a recommendation on how to resolve the outstanding issues, and it often takes place in the judge’s chamber with just the lawyers. This can save you both time and money. The trial is the last step and only occurs if either party does not agree with the judge’s recommendation. Then, the court will hear evidence from both sides, as well as testimony from witnesses, and come to a decision.

Legal Separation vs. Divorce Comparison: Which Is Better For You?

Chicago Legal Seperation Attorney



The unique situation of each marriage, family and individuals will dictate whether legal separation or divorce would be the better option. Since Illinois is a no-fault state, the grounds for divorce and separation are the same and can be as “simple” as irreconcilable differences. You can find an overview of the differences and similarities between the two in the comparison table below to help you get the big picture, but it’s always advisable to seek professional guidance from an experienced divorce attorney like Weiss-Kunz & Oliver, LLC.

 

Legal Separation

Divorce

Grounds

Irreconcilable differences

Irreconcilable differences

Issues to be decided

  • Division of property
  • Debt
  • Child visitation
  • Child support
  • Spousal support
  • Division of property
  • Debt
  • Child visitation
  • Child support
  • Spousal support
  • Freezing of assets

Length

45 days - 18 months
(average)

45 days - 2 years

Ability to remarry

No

Yes

Ability to inherit

Yes

No

Permanent 

No

Yes

If there are no minor children involved, and you are sure that the marriage cannot be saved, then you might want to file for divorce straight away. In this case, you and your spouse may actually be able to work out a lot of the issues to be decided amongst yourselves, therefore greatly reducing the length and cost of the process.

On the other hand, if you are not sure you are ready for such a final step, or your worry about the effect it will have on your children, then legal separation may be the better course of action, as it will provide both you and them with the right environment to process and adapt to the new life.

“I would never encourage legal separation unless there are health or religious reasons", Kunz says. “I always suggest divorce, because in legal separation you go through the same process as the divorce process but in the end, you're not divorced. If further down the line you decide to get a divorce, you may have to go through it again."

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