Should you separate or divorce in Illinois?

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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Is It Better To Be Legally Separated Or Divorced In Illinois?

Should you separate or divorce in Illinois?

When you are considering leaving your spouse in Illinois, you have options.  You can get a divorce or you can get a legal separation from your spouse in Illinois.  Is it better to be legally separated or divorced in Illinois?

What Is A Legal Separation In Illinois?

A legal separation in Illinois is described by its purpose in the Illinois statute.

“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)

You can get all of the temporary relief in a legal separation that you could get in a divorce.

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

There’s lots of temporary relief available in a family law action.  Some of the temporary reliefs available are:

Temporary relief is a peculiar order from an Illinois family law court. Temporary relief never ends until you’re actually divorced.  So, if you’re just pursuing a petition for legal separation and NOT a divorce, your temporary relief can last forever. This could be a very clever way to stay in a house without splitting it up or to receive maintenance (formerly known as alimony) without an end date.

In fact, you can’t even modify a support order in a legal separation action. In Re: Marriage of Sutton, 136 Ill. 2d 441, 145 Ill. Dec. 890, 557 N.E.2d 869 (1990

The Illinois statute caps the temporary reliefs available for legal separation are limited however in a petition for legal separation to

  • Temporary Child Support
  • Temporary Maintenance (formerly known as alimony)
  • Petition For Restraining Orders

“[T]emporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501.” 750 ILCS 5/402(a)

I don’t know why the other temporary reliefs shouldn’t be available. So you can still ask for them and a judge will probably grant them.

But if you don’t want your spouse asking for your pet or even your children during a legal separation, you can invoke this portion of the statute. (I have never seen it done)

The Big Difference Between Divorce And Legal Separation In Illinois

Most legal separations in Illinois are everything but the final split of the 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)

Legal Separations are actually a final demarcation as to what exactly is marital and non-marital property.

“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)

So, legal separation in Illinois can be a good way to protect your future assets if you’re not sure what will happen in your relationship.

Legal Separations In Illinois Can Always Turn Into A Divorce

The Illinois statute does not seem to be a big fan of legal separations.  The Illinois statute actively encourages the other party to file for divorce if their spouse files for legal separation.

“A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted.” 750 ILCS 5/402(c)

In fact, if you don’t like the ruling you got in a legal separation proceeding you can just file for divorce and the Illinois family law judge will throw out the old court ruling and start from scratch.

“Absent an agreement set forth in a separation agreement that provides for non-modifiable permanent maintenance, if a party to a judgment for legal separation files an action for dissolution of marriage, the issues of temporary and permanent maintenance shall be decided de novo.” 750 ILCS 5/402(c)

Is A Legal Separation Better Than A Divorce in Illinois?

If you don’t want to divide your property but you want child support and maintenance legal separation is probably better than a divorce in Illinois?

A legal separation will give you time to think things over while still receiving the support you need. 

If you are already separated and living separate lives, a legal separation may create a line in the sand where you can let the court know that you no longer live together and you no longer share marital assets in the future.  If you don’t legally separate ALL new assets will remain marital assets until you divorce.

Many people get a legal separation so they can stay on their spouse’s health insurance policy. While you can never remain on your divorced spouse’s health insurance policy, some health insurance policies will allow a separated spouse to retain coverage. This is very rare, however, and depends completely on the health insurance policy not the law.

A divorce is better than a legal separation in Illinois because a divorce always trumps a legal separation. The minute a divorce is filed, the legal separation’s orders become meaningless.

If you’re considering a legal separation or a divorce, contact my Chicago, Illinois law firm to learn more about the difference after speaking with an experienced Chicago divorce lawyer.