Posted on November 2, 2023

Physical Separation And Divorce In Illinois

Divorce does not happen quickly. Usually there are a few months to a few years between breaking up with a spouse (usually moving out and living apart) and finally being divorced. We politely refer to this period as a “separation.” Does this physical separation have any impact on an eventual divorce in Illinois? How is physical separation different from a legal separation in Illinois?

Physical Separation And Division Of Assets

Physical separation (breaking up or living apart) should have no effect on the division of marital assets in an Illinois divorce.

Marital property is any property that is acquired during the marriage.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

You are still married if you are physically separated from your spouse but not yet divorced

“To hold that the parties did not accrue marital property after the date of physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

Courts can look at who paid for what during the marriage when dividing marital assets in “just proportions.”

Illinois divorce courts consider “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1)

It’s not clear why contributions to the marital estate when the parties live apart have any affect on how the court should divide the marital property.

Assets acquired after physical separation but in advance of filing for divorce cannot be distinguished from each other as courts can consider (and impliedly only consider) “whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)

A party’s “suggestion that the date of the parties’ separation should be used as the termination date of [the other party’s] marital property rights is baseless. For us to hold that a de facto termination extinguishes marital property rights would create, in effect, “common law divorce.” Law and policy will not support such a result.” In re Marriage of Brooks, 138 Ill. App. 3d 252, 259 (Ill. App. Ct. 1985)

In conclusion, breaking up or moving out does not affect how the courts will divide marital assets in Illinois. Filing for divorce and living apart, however, may allow a court to deem property earned post-filing as worthy of an equitable distribution to the spouse that earned that property.

Maintenance And Physical Separation In An Illinois Divorce

Every divorce in Illinois may include an award of maintenance from one spouse to another.

“In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)

An Illinois divorce court first considers whether maintenance should be awarded at all based on certain factors. Some of those factors are very relevant if the married couple has been physically separated from each other for some time.

“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:

(2) the needs of each party;…(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;… (13) any valid agreement of the parties; and(14) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504(a)

If the parties have been living separately for an extended period of time, it will be easy to determine their respective needs.

If the parties have been living separately, we will know “the time necessary to enable the party seeking maintenance to acquire appropriate…employment” because they will likely already be working and supporting themselves in the absence of the other party.

A casual parental schedule will likely also have been agreed to after separation which can impact maintenance.

“The standard of living established during the marriage” will include this period of physical separation.

Parties who agreed to separate have entered into an oral agreement. The failure to file for divorce and ask for maintenance immediately may be deemed a waiver of that right.

Finally, a court can consider “any other factor” including the physical separation itself when deciding to award maintenance.

If maintenance is awarded, physical separation will likely have little impact on the amount or duration of the maintenance.

“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)

Guidelines maintenance is a mathematical formula which bases the amount of maintenance on the parties incomes and the duration of that maintenance based on the date of filing a petition for dissolution of marriage.

“The duration of an award [of maintenance] shall be calculated by multiplying the length of the marriage at the time the action was commenced” by a series of escalating multipliers. 750 ILCS 5/504(b-1)(1)(B)

Child Support And Physical Separation In An Illinois Divorce

Courts will consider how long parents have been physically separated when awarding back child support depending on whether the parents were married or not.

For unmarried parents, “[t]he court may order child support payments to be made for a period prior to the commencement of the action. In determining whether and to what extent the payments shall be made for the prior period,” 750 ILCS 46/802

Specifically, the courts look to see when the last time the parent who should be paying child support was actually supporting the child (usually by living with the child).

“In determining whether and to what extent the payments shall be made for the prior period, the court shall consider all relevant facts, including but not limited to:

“The father’s prior willingness or refusal to help raise or support the child” 750 ILCS 46/802(e)(3)

It is usually the father that walks out on a mother so the statute uses some sexist language to ask “Why didn’t the mother file for child support after the father left?”

An Illinois domestic relations court can consider “[t]he extent to which the mother or the public agency bringing the action previously informed the person obligated to pay support of the child’s needs or attempted to seek or require the help of the person obligated to pay support in raising or supporting the child.” 750 ILCS 42/86(e)(4)

AND

“The reasons the mother or the public agency did not file the action earlier” 750 ILCS 42/86(e)(5)

Married parents do not have their physical separation considered at all. For married parents, the courts only look to the filing date of the petition for dissolution of marriage when awarding child support.

“[T]he circuit court [has] the statutory authority to award…maintenance and child support from the date of [the] request in the petition for dissolution, with appropriate credit given for the temporary payments” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

Parenting Time And Physical Separation In An Illinois Divorce

Illinois divorce  courts determine parenting time based on a series of factors that physical separation may impact parenting time.

If a parent has been absent from a child’s life…don’t expect them to be granted significant parenting time as the court considers “the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth” 750 ILCS 5/602.7(b)(3)

Likewise, an absent parent is likely to have strained relationship with their child and a court will consider “the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests” 750 ILCS 5/602.7(b)(5)

The previously absent parent will likely live in a new home and community. The court will acknowledge that the child enjoys the home that they are used to when considering “the child’s adjustment to his or her home, school, and community” 750 ILCS 5/602.7(b)(6)

The separation and absence of a parent may be perceived as a tacit agreement of the parties. Illinois divorce courts can consider “[A]ny prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child” 750 ILCS 5/602.7(b)(4)

A parent is always a parent even if they are gone and nothing has been filed by either party. No one can usurp a parent’s rights…even if no divorce has yet been filed.

“We cannot envision the supreme court…finding standing for the grandparents if the mother and father were separated and not divorced.” In re Person & Estate of Newsome, 527 NE 2d 524 – Ill: Appellate Court, 4th Dist. 1988

Separation of parents is really hard on kids.

Quoting an expert, “[c]hildren at the age of three, between two and three and a half, four, sometimes they have very serious difficulties with the prolonged separations, particularly if those separations take place under very emotional circumstances.” Curran v. Bosze, 566 NE 2d 1319 – Ill: Supreme Court 1990

Legal Separation vs. Physical Separation

Legal separation is a separate claim under the Illinois Marriage and Dissolution of Marriage Act. Legal separation is only granted if you live apart for the purposes of requesting support from the other spouse.

“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…If the court deems it appropriate to enter a judgment for legal separation, the court shall consider the applicable factors in Section 504 in awarding maintenance.” 750 ILCS 5/402(a),(b)

That’s it. That is all a legal separation is and does. At least a legal separation is a legal concept which (again) physical separation is not.

Don’t You Have To Be Separated For A Certain Amount Of Time Before You Can File For Divorce In Illinois?

No. Illinois has no requirement for separation before filing for divorce. The only requirements to file for divorce in Illinois are that 1) one of the parties be a resident of Illinois for 90 days before the entry of the judgment of dissolution of marriage and 2) “Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 401(a)

Living separately merely proves that the parties have irreconcilable differences.

“If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.” 750 ILCS 401(a-5)

The categories that Bumble lets you choose are not legally binding. Merely declaring that you are “separated” has the same legal effect as going out on the street and shouting “I declare bankruptcy!”

If you are separated from your spouse but have not filed for divorce yet, you need to know how your separation will affect (or not affect) your eventual divorce. Contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Illinois 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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