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What Are the Steps for Obtaining a Legal Separation in Illinois?

Posted on in Divorce

Kane County family law attorneyMany married couples grow apart and decide they can no longer live happily ever after. However, divorce is a big step, and some spouses may not be ready for such a drastic action. In Illinois, another option couples can consider is filing for a legal separation. This is a legal process that formalizes a separation, which is granted in the form of a court order, while the spouses remain legally married. 

Choosing between a legal separation and a divorce is sometimes a matter of personal preference. Some individuals have religious or personal beliefs that do not allow them to get divorced, but a legal separation permits them to stay married while living separate lives. Couples may think that a legal separation is not as involved as a divorce, but it still requires the couple seeking it to address certain issues, as well as follow the proper legal steps. 

Benefits to Separating Versus Divorcing

A divorce can be the right option for many spouses who are in dysfunctional relationships. However, there are scenarios where a legal separation is a more appropriate alternative. This option leaves the door open in case a couple decides to reconcile. It is important to note that a legal separation does not mean the spouses can remarry other people; that is only possible after obtaining a final divorce decree. A few instances where obtaining a legal separation might make more sense include the following:

  • Remaining married allows a spouse to continue to receive benefits such as health insurance, social security, and retirement plans.
  • Religious beliefs or personal reasons prohibit divorce.
  • Living apart is a good trial if a couple is not ready for divorce. 

Illinois Separation Laws 

In order to obtain a legal separation in the state of Illinois, at least one of the spouses must have resided in Illinois for at least 90 days and the parties must be living apart. The first step requires that one party fill out a petition for legal separation along with a summons and

file both with the Clerk of the Circuit Court of the county where one of the spouses lives or the county where the parties last lived together as husband and wife.

The request for separation must also include personal information such as each spouse’s age, residence, occupation, date of marriage, date of separation, and if there are children from the marriage. Under Illinois law, the summons and petition must be served to the receiving spouse with a date for a hearing. During the hearing, the couple will give valid legal reasons for wanting the separation. 

If the hearing goes well, the court can enter an order granting legal separation. If a couple cannot agree on specific issues such as spousal and child support during the first hearing date, it is possible to defer these decisions and schedule a later hearing date. However, a second hearing might not be needed if the partners work out the decisions and create their own separation agreement with the help of an experienced family law attorney. 

Keep in mind that a couple who obtains a legal separation could go on to get a divorce. They could also reconcile and have the order of separation vacated. Finally, the couple could remain legally separated until the death of one spouse, at which point, the other would be free to remarry.

Separation Agreement

A separation agreement is a legally binding contract that the judge and both parties must sign at the end of the legal proceedings. The terms of the agreement must be in writing and should include the following essential information:

  • Allocation of parental rights and responsibilities
  • Parenting time (visitation) for the non-custodial parent
  • Child support
  • Spousal support
  • Division of property and debts

If the parties cannot reach an agreement on these issues, the court has the discretion to rule on the matters--with the exception of property division. In a legal separation, the court can approve a property settlement between the parties, but it will not divide the couple’s property unless and until one of the spouses files for a divorce.

It is important to know that a separation agreement is a legal court order, therefore, if one of the spouses wishes to change it in any way, he or she can do so but must first obtain approval from the other spouse or the court.

Contact a St. Charles Family Law Attorney

Divorce is the permanent legal end to a marriage. For some couples, this may be too severe, and they choose to file for a legal separation instead. Even if you choose this route, it still involves resolving marital issues, including child-related matters, division of property, and spousal maintenance. Therefore, it is important to follow the proper legal steps. One of our seasoned Algonquin legal separation lawyers can guide you throughout the process to ensure your rights are protected. To schedule a free consultation, call our office today at 630-200-4882. 

 

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K402

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