The process of legally ending a marriage can take many months even after a divorce petition has been filed. However, for many couples who separate before seeking a divorce, the process can be much longer. Some people are separated for years before finally making the decision that divorce is the best option. If this is true for you, you may find yourself dealing with some of the following legal issues during the divorce process.
Demonstrating Irreconcilable Differences
In order for a divorce to be granted in Illinois, the petitioner must demonstrate that the marriage has failed due to irreconcilable differences. This is a minor obstacle for most couples who are in agreement about getting a divorce, but it can be a bigger challenge when one spouse is opposed. However, if you and your spouse have already been living apart from each other for at least six months, with or without a judgment of legal separation, the court will consider this as irrebuttable evidence of irreconcilable differences, meaning that the divorce can proceed despite a spouse’s possible objection.
Revisiting Spousal Maintenance and Child-Related Issues
If you have petitioned the court for a judgment of legal separation prior to filing for divorce, it is likely that you have already reached an agreement with your spouse regarding spousal support, child support, and the allocation of parental responsibilities throughout the separation period. This may help you to simplify the divorce process if this arrangement continues to meet everyone’s needs and you can agree to continue it under the same terms after the divorce. However, if your circumstances have changed substantially during the separation, or if you are no longer satisfied with the agreement, you will have the opportunity to renegotiate the agreement during the divorce process.
Handling Dissipation of Marital Assets
Perhaps the most complicated aspect of a divorce after a long separation is the division of marital assets. Though spouses have the option to reach an agreement on the division of property when petitioning for legal separation, many people put off this major decision until the divorce. The longer a separation lasts, the more difficult it may be for each spouse to stay aware of the other’s use of marital assets. Living apart from your spouse means they may have more opportunities to spend or hide assets without your knowledge, and this makes using a forensic accountant all the more important to protect your financial interests.
If your spouse has dissipated marital assets, you have the right to seek restitution through the division of assets. However, there is a time limit preventing you from claiming dissipation for behavior that occurred more than 5 years ago or that you have known about for more than three years, which means that if you have been separated for many years before your divorce, you may be unable to fully recover your losses.