Posted on February 26, 2022

Getting Divorced In Illinois Without Really Getting Divorced

Getting a divorce is a big deal. Some people just aren’t ready for a divorce. If you can no longer live with your husband or wife…but cannot abandon your home and file for divorce, you may want to functionally separate your life without getting an actual divorce in Illinois.

Why Would Someone Not Want To Get Divorced?

Divorce carries a stigma of some degree amongst everyone. Some people just aren’t ready to get divorced no matter how bad their marriage is.

Practically, there are a lot of advantages to being married; you can file jointly on your taxes, you can apply for loans together, you can be eligible for various government benefits as a household.

Specifically, a marriage of 10 years of length or more can allow a spouse to receive social security benefits based on the other spouse’s income history. Any marriage less than 10 years will only allow a person to use their own earnings to calculate their social security benefit. So, extending a marriage may be valuable to one spouse and costless to the other spouse.

The most common benefit to being married is that your spouse’s health insurance must also insure you.

“No policy of…health insurance, nor any certificate thereunder shall be delivered or issued for delivery in this State after December 1, 1985, unless the policy provides for a continuation of the existing insurance benefits for an employee’s spouse and dependent children who are insured under the provisions of that group policy or certificate thereunder” 215 ILCS 5/367.2(A)

If there is an existing health issue with the uninsured spouse, divorce can literally be a taking your life in your own hands.

Legal Separation As An Alternative To Divorce

“Any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they so live apart.” 750 ILCS 5/402(a)

After a legal separation in Illinois, either party can petition the court for temporary relief just like a divorce would provide.

“[T]emporary relief and trials shall be the same as in actions for dissolution of marriage.” 750 ILCS 5/402(b)

While child support and maintenance (formerly known as alimony) are available after an Illinois legal separation, division of assets is not available…unless the parties agree to divide their marital assets.

You cannot divide property up in a legal separation unless the parties agree to it.

“If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions:  (1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds the agreement is unconscionable; and (3) such an agreement is final and non-modifiable” 750 ILCS 5/504(b)

Furthermore, marital property is no longer created after the legal separation is granted.

“For purposes of this Act, “marital property” means all property acquired by either spouse subsequent to the marriage, except the following, which is known as “non-marital property”:

property acquired by a spouse after a judgment of legal separation.” 750 ILCS 5/503(a)(3)

All income earned and assets acquired by either spouse after the legal separation is granted will remain the assets of that spouse and NOT be subject to any division.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

What happens to a spouse’s health insurance after a legal separation? It is up to the insurance provider if they want to provide health insurance to a legally separated spouse. Why would any insurance provider submit themselves to additional liability if they didn’t have to?

COBRA is definitely offered after a legal separation, so (I can’t find anything contrary) it must be legal to take your spouse off of your health insurance after a legal separation.

A qualifying COBRA event is “[t]he divorce or legal separation of the covered employee from the employee’s spouse.” 29 U.S. Code § 1163(3)

How Can You Get The Same Effect Of Being Divorced While Staying Married And Not Getting A Legal Separation In Illinois?

With a little clever legal work, a married couple can effectively unwind their marriage while remaining married via a post-nuptial agreement.

“Postnuptial agreements [are] allowed…where the parties had already separated or were on the point of separating (separation agreements)” In re Marriage of Barnes, 755 NE 2d 522 – Ill: Appellate Court, 4th Dist. 2001

There is a strong bias in Illinois law towards upholding agreements between married parties. After all, who knows what’s best for a marriage better than the members of that marriage?

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, [or] maintenance of either of them…

The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

The post-nuptial agreement must be followed…or either party can go to court and enforce the agreement whether they are demanding a divorce or not.

Property can be divided before a divorce is granted via a post-nuptial agreement. The property just won’t be officially divided until the actual moment of divorce.

An Illinois court will honor the terms of a post-nuptial agreement. When allocating property, an Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

any prenuptial or postnuptial agreement of the parties” 750 ILCS 5/503(d)(7)

A post-nuptial agreement cannot include any language about “providing for the support and parental responsibility allocation of children” 750 ILCS 5/502(b)

Children’s issues must be handled by a separate agreement, the Allocation of Parenting Time And Parental Responsibilities.

“A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court…by filing a petition for allocation of parental responsibilities with respect to the child in the county in which the child resides” 750 ILCS 5/601.2(b)(2)

There’s no requirement for a petition for dissolution of marriage to have been filed in order for two parties to determine their rights to their children.

This agreement regarding the children must be approved by an Illinois domestic relations judge in order to honored.

“It is the public policy of this state that courts have an independent duty to ensure that the arrangements made by divorcing parents that directly affect their children—those relating to custody, child support, and visitation—are in the best interest of the children.” In re Marriage of Iqbal and Khan, 11 NE 3d 1 – Ill: Appellate Court, 2nd Dist. 2014

So, there you have it! With a post-nuptial agreement and an allocation of parenting time and parental responsibilities, you have all the practical functionality of a divorce…without actually getting dissolving your marriage in the eyes of the law.

You can continue to remain on your spouse’s insurance and even have your social security payment boosted by employing this alternative to divorce.

Of course, either party can initiate a petition for dissolution of marriage at any time and actually dissolve the marriage under the Illinois Marriage and Dissolution of Marriage Act. Additionally, you cannot get remarried until you are divorced.

If separating yourself from your spouse without being officially divorced is something you’d like to explore, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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