All About Legal Separation in Illinois
In Illinois, a legal separation is primarily used to ensure a legally protected arrangement for the living conditions of a couple who is no longer able to live together. It provides binding legal protection for each party and can help diminish conflict that comes when a couple is morally separated yet still living together. Legal separation involves filing for legal separation through the court system which will determine the factors of custody, financial support, and/or property division before granting the legal separation.
Legal separation from spouse can be quite beneficial for some people, especially when there are more intricate or inordinate family arrangements such as dependent children or special needs children. Filing for legal separation may be dictated by religious beliefs in place of divorce, depending on the severity of the differences between two spouses.
The process of legal separation is relatively the same as the process of initiating a divorce. The difference with a legal separation, however, is that the parties continue to be legally married, even though they will outline their life as if they were divorced . A major reason that it may be beneficial to file for legal separation rather than divorce is because parties under legal separation still retain the advantages of spousal support that are offered under Illinois law.
When filing for legal separation, separation agreements and/or mediation documents should be filed along with the initiative for legal separation. This will create an official document on record of how the couple has divided their affairs. When a couple is legally separated they may live separately while still retaining their legal marital status. Their separation is usually determined by court order and the parties may decide at any time to reunite, further separate, or renegotiate their terms of separation.
Under Illinois law, a legal separation is essentially the same as divorce. That is, basic custodial terms, property allocation, and child support for minors are all agreed upon in the separation process, just like they would be in the divorce process. If a couple separates and a divorce ensues, this process is exactly the same, however, the couple already has a basis for legal support in place so the divorce process is expedited for both parties.
Legal Separation Requirements
Before you start filling out the necessary paperwork for legal separation, you need to make sure you are eligible to file for legal separation in the state of Illinois. There are certain requirements you must meet before a separation can be granted. First, you must be married. You cannot ask for a legal separation if you have never been married to begin with. Additionally, you are required to meet residency requirements that state you or your spouse has lived in the county where you are filing for the last 90 days. In some situations, there may be alternate grounds for requesting the separation other than a fault-based one. For instance, a spouse is not required to prove fault-based allegations (such as desertion, adultery, habitual drunkenness, etc.) if they are filing for separation. Instead, the couple may just simply reluctantly agree to a separation.
Filing for Legal Separation
The process of obtaining a legal separation in Illinois typically begins through the filing of a Petition for Legal Separation with the appropriate circuit court. After the petition is filed, the petitioner must then arrange for service of process on the other spouse. The person who served the process -typically a licensed and bonded individual-, must then file an Affidavit of Service with the Circuit Clerk to prove that the process was legally served on the respondent.
Once the petition has been properly served on the respondent, that individual may file an entry of appearance or file an appearance of counsel in the case and/or file an Answer to the petition. Once all of these documents have been filed the matter may be set on the Court’s calendar for a case management conference with the assigned judge. At this point, the parties must also disclose all assets, debts, etc. The specific deadlines for disclosure should be within each Court’s standing order that can be obtained from the Court or their Court staff.
Separation Agreement Negotiations
While navigating the process of legal separation, a couple can enter into a separation agreement as a way to avoid litigation and make the separation final between them. A separation agreement in Illinois is a written contract that sets forth the details of a separation as they relate to issues typically covered in a divorce, including but not limited to property division, spousal maintenance (formerly known as spousal support or alimony), and child custody. The agreement also addresses issues of individual tax liabilities.
To ensure the agreement is legally enforceable in a court of law, both parties must have sufficient legal representation and the contract should be entered into without any amounts of coercion or duress. Further, the agreement must be in writing, signed by both parties and notarized.
During the negotiation phase, a couple may discuss the terms of the separation agreement and work together to come to a final decision on the following:
Child Custody – both parents can agree on child custody arrangements pertaining to the allocation of the decision-making responsibilities regarding the children, as well as the visitation schedule.
Spousal Maintenance – the couple may agree on whether spousal support will be awarded and, if so, how much the amount of support will be, and whether it should be periodic or for a fixed term.
Property Division – the couple can decide how they want the marital property to be divided. Illinois is an equitable distribution state, so the property needs to be divided in a fair manner, but not necessarily in one that splits the property 50/50. For instance, one party may keep the house while the other pays the other half in monetary value and obtains control over other assets.
If the couple can agree on key aspects of separation, it can expedite the process of finalizing the separation. Prior to signing the separation agreement, however, both parties may need to seek legal guidance to ensure the agreement is one-sided or further merit issues with valuation of assets may later arise.
Legal and Financial Consequences
Legal separation can have significant legal and financial effects on a couple. For example, legal separation terminates the legal relationship the couple has with the Internal Revenue Service. That means one spouse cannot file a joint tax return even if the couple has not had a final divorce. While legal separation does not affect filing status after the couple separates, it is important that the proper filing status is used to avoid problems with the Internal Revenue Service later.
A couple who is legally separated is likely to no longer be on the same group health insurance plan. Change is not only common; the law requires it. An employer must treat legally separated spouses as single employees. This means that one spouse could, for example, drop the other spouse as a dependent and enroll his or her children in his or her own employer-sponsored plan. However , the spouse who drops coverage for him- or herself and the children may be subject to penalties if he or she does not enroll in an employer-sponsored plan or a private plan that meets minimum essential health benefits requirements and affordability criteria. The spouse in the plan that covers the other spouse and the children can continue the coverage, but he or she should consult with the Human Resources department of the employer. What happens to the coverage after the divorce depends on state law.
When married people choose a legal separation, they are telling the court and the world that they are ending their marriage. However, many couples stay married on paper for years while they explore other options. In fact, many religious groups frown upon divorce. As a result, many people who are legally separated do not get a divorce until they have lived apart for years or even decades. They might stay married because they want to keep health and life insurance or pension benefits intact.
Legal Guidance
While it is possible to seek a legal separation without an attorney, it can be very helpful to speak with an experienced lawyer who can offer counsel unique to your situation. For example, an attorney may be able to help you with the following:
• Better Understand the Laws – The attorney can explain how the law applies to your situation, helping to ensure you and your spouse stay within the bounds of the law, as opposed to inadvertently conducting yourself in a way that may hurt your future (such as offering payments of support to a spouse during the period of legal separation that could be viewed as child or spousal support).
• Provide Drafting and Representation Services – Once the terms of the legal separation are agreed upon and the necessary court documents are drafted, the attorney can file the appropriate paperwork, attend court with you and communicate with the other party’s attorney.
• Navigate Potentially Complicated Issues – Because many legal separation arrangements involve property division, spousal support, childcare arrangements and other issues, an attorney can help you negotiate a separation agreement that will be respected by the family court system.
• Protect Your Rights – While you are generally not entitled to alimony or child support in the context of a legal separation agreement, a legal expert can help you protect your rights and advocate for a fair settlement.
A legal separation attorney can also aid with the establishment and modification of other family law arrangements.
Frequently Asked Questions
1. How long do you have to be legally separated in Illinois?
In Illinois, a legal separation does not affect the time requirements for obtaining a divorce. If you’re legally separated for six months and one day or longer, you qualify for a divorce after your six-month separation period is up. If you’re not sure you’ll want a divorce, consider dating your legal separation papers a specific number of months later so that you’ll have the option to continue the stay if you want it.
2. Can a legal separation agreement be changed in Illinois?
Generally speaking, legal separation agreements don’t stand as permanent changes to your legal relationship status. Instead, you can have your legal separation agreement modified in Illinois as your circumstances change. For example, if your children become adults, you can modify the child support provisions in your agreement . Alternatively, if one spouse fails to comply with the other’s requests for support or other provisions, the judge can overrule the agreement and override the separation if it’s deemed in the best interest of the family.
3. What happens if you have a legal separation and one party wants a divorce?
Even in the event of a legal separation, any party can file for divorce before the separation is over, in which case the court will honor that filing. If one party wants a divorce and the other wishes to remain separated, then the party who filed the for the divorce will receive the divorce, leaving the other spouse with a legal separation status. However, you still have the option to negotiate signing a document that combines the terms of the agreement with the terms of the divorce.