Legal separation is a good scenario for conflict: not quite married, not quite divorced. Not surprisingly, people are always getting legally separated on television because it adds conflict to a storyline. This leads the American public to believe that legal separation is common. Legal separation is not common in Illinois, however.
In the Illinois statute, legal separation is quickly described by its purpose. “Any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they so live apart” 750 ILCS 5/402(a)
That’s the whole point of getting a judgment of legal separation, to get maintenance and support even though you’re not yet divorced. There is almost nothing else a judgment of legal separation can do for you in Illinois.
In Illinois, prior to 2016 you had to wait 2 years after separating before asking for a divorce. Some people needed to be separate from their spouse and they needed alimony/maintenance so they filed for legal separation in the meantime to get that alimony/maintenance.
Now you only need to be separated for six months but the rule isn’t even effectively enforceable.
Legal separation in Illinois also has one side benefit, It draws a line in the sand as to when property stops becoming marital property:
“For purposes of this Act, “marital property” means all property, including debts and other obligations, 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)
Outside of giving you a divorce, there is one thing that legal separation CANNOT do. An Illinois divorce court cannot divide marital property via order under a petition for legal separation. Shapiro v. Shapiro, 113 Ill. App. 2d 374, 252 N.E.2d 93 (1st Dist., 4th Div. 1969)
Despite this, courts do award the marital home to parties during petitions of legal separation. The award however is usually just a temporary possession until further order of court through a Petition of Dissolution of Marriage. Getting the courts involved always provokes the filing of a Petition for Dissolution of Marriage by the other spouse once the court has made and award temporary possession of a house.
An Illinois court may however divide property under a Petition For Legal Separation if 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)
So be careful. Any deal regarding property that you cut in a legal separation proceedings is permanent and cannot get brought up again once you’re finally ready to get divorced. Again, this is why opposing parties always file a counter-petition for dissolution after a petition for legal separation has been filed.
Once support or maintenance is established under a legal separation agreement that support or modification cannot be modified until there is a judgment of dissolution. In Re: Marriage of Sutton, 136 Ill. 2d 441, 145 Ill. Dec. 890, 557 N.E.2d 869 (1990) This may have strategic implications for either party who gets a maintenance order under a petition for legal separation.
Child support can be granted under a Petition for Legal Separation. Child support is presumably modifiable under a judgement for legal separation as there’s no case law contrary to that.
Child custody and visitation issues can also be granted under a Petition for Legal Separation.
All of the temporary motions for relief that are available to parties under a Petition For Dissolution Of Marriage are also available to parties under a Petition For Legal Separation. 750 ILCS 5/501
Even the right to ask your spouse to pay attorney’s fees are available in a Petition For Legal Separation. In re Marriage of Jacobson, 411 NE 2d 947 – Ill: Appellate Court, 1st Dist. 1980
So, legal separation is largely pointless under the current Illinois statute and case law. When considering legal separation vs. divorce in Illinois if you are not ready to be divorced, you can simply and easily put your Illinois divorce on hold after filing.
If you are not ready to even file for divorce, you should be in contact with a therapist because if you’re not willing to truly consider a divorce filing even in a somewhat miserable marriage, you have clearly internalized some terrible feelings about your self-worth.
Contact my family law office in Chicago, Illinois today to learn more about what legal separation is and what it isn’t.
