Illinois Legal Separation

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In Illinois, a legal separation and a physical separation are not the same thing. In a physical separation, although the couple lives apart, no legal action has been initiated. In a legal separation, the parties must initiate a lawsuit in court to receive permanent orders regarding issues such as child custody and child support, division of property and debt, and spousal maintenance.

A legal separation is appropriate for those who do not want a divorce, but seek to live apart and also require a judge’s order on specific issues. When obtaining a legal separation, although a judge ultimately decides who will get custody of the children of a marriage, parents are encouraged to try to agree on custody issues and present the ensuing agreement to the judge for approval.

Divorce and legal separation are also different. A divorce legally ends a marriage and allows the parties to remarry someone else. Some separated couples choose a legal separation instead of a divorce for religious reasons, financial reasons or insurance-related matters. Other couples feel that legal separation does not impact their children as detrimentally as a divorce and allows them to interact in a more open manner making it more desirable than divorce.

In Illinois, a legal separation does not end a marriage. You cannot marry someone else if you are legally separated, rather than divorced. In a legal separation there is no assignment of blame and there is no “grounds for separation” requirement. However, to get a legal separation in Illinois, it cannot be your fault that you are separating. In addition, the court must have jurisdiction over you and your spouse to award you a legal separation. In order to have jurisdiction, you must have resided in Illinois for more than 90 days and you have to serve your spouse with proper notice of the lawsuit you have initiated. You can still obtain a legal separation if your spouse lives in another state. However, if he/she has never lived in Illinois or committed an act inside Illinois that would cause him/her to come under the jurisdiction of the court, the court will not be able to order your spouse to do anything, such as pay child support or debts.

The law which governs most of the area of legal separation in Illinois is the Illinois Marriage and Dissolution of Marriage Act, found in Act 5 of Chapter 750 of the Illinois Compiles Statutes. Under Illinois law, legal separation allows a spouse who is without fault to receive reasonable support and maintenance while the parties live apart. Legal separations may be converted into a divorce, although court procedures must be followed.

Because legal separations in Illinois are lawsuits filed in court, which proceed much like a dissolution of marriage, when there are unresolved issues, or questions about jurisdiction and the like, it may be advisable to consult an experienced family law attorney.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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