Legal Separation

Divorce and legal separation are completely different and have difference legal consequences. If you are not sure if you want a divorce, a legal separation may or may not be a good alternative to you.  Understanding the differences and the advice of an Illinois divorce attorney can help you decide if legal separation or divorce is right for you.

I want to keep our marriage together. Our marriage counselor says we should separate for awhile. Do you advise we separate?

No. The only way problems in a marriage can be worked out is through communications. There will be no, or little, communication if you are separated.

Do you mean the marriage counselor is wrong in advising a separation?

Probably. Decades of experience tell me that absence does not make the heart grow fonder. If anything, one of them realizes that the separation is better than living together.

Do you ever advise separation?

Yes. But only to announce a divorce will happen. In a situation where one of the parties decides there will be a divorce, but the other party does not get the signal, a strong way to send a strong signal is to move out.

Is a legal separation like a divorce?

A legal separation, like a divorce, is a court procedure which produces a court judgment establishing the parties’ rights and obligations. The differences between a legal separation and a divorce is that a legal separation judgment does not divorce the couple. They remain married and, unless the parties consent, in legal separation proceedings the court cannot divide the parties’ property.

Why do couples have legal separations?

In some instances for religious reasons, but from my experience the Roman Catholic Church has liberalized its positions on church annulments.

What can a judge order in a legal separation judgment?

(a) Child custody (now referred to as allocation of parental responsibilities) and visitation (now: parenting time). (b) Child support. (c) Maintenance (alimony). And by agreement, property allocation.

How is alimony / maintenance affected by a legal separation?

Illinois law provides that generally, “…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.” De novo matter means like a new matter.  So, the duration of maintenance under a legal separation cases is not considered against a potential overall length of maintenance under the Illinois maintenance guidelines. Obviously, this is a positive to the recipient of maintenance and a negative to the payor.  This is part of the reason that potential payors of maintenance often counter a legal separation lawsuit with a petition for dissolution of marriage.

Will I get into trouble if I merely split – – leave the marital residence?

No, not in the sense that you are “abandoning” your house and lose interest in your house. But with children, if you intend to have custody of your children, and you leave without the children, leaving will prejudice you.

Can I be evicted from my house despite my wanting to stay so I can work out the problems in the marriage?

Potentially.  Under the Domestic Violence Act and also under the Divorce Act, exclusive possession in certain cases can be granted to one spouse.

If I file suit for divorce and have my spouse served with summons doesn’t that mean he/she has to move out?

No. Illinois law has rather onerous provisions relating to exclusive possession of the marital residence. See the Gitlin Law Firm’s Q&A re exclusive possession of the marital home.