Overview of Legal Separation in Illinois
Legal separation in Illinois is a formal step a couple can take before fully divorcing. A legal separation agreement is a legally binding contract between spouses that does everything a divorce decree would do – divide assets and debts, allocate parental responsibilities and parenting time, and may even set up future spousal upkeep. Sometimes a couple chooses this step as a trial separation, or to take the legal "intermediate step" before actually ending the marriage. In some cases, a legal separation is imposed on the couple by one partner. If one spouse is in such a terrible, abusive situation that it is too dangerous to "stay until the children are older" or "until the house sells" then the partner can petition the court for this step. This protects both partners from unjust property grabs or custodial losses – while allowing them to follow through with the divorce process. Many partners legally separate when one has a terminal illness. This process allows the couple to review finances, insurance policies and even end of life care details as a team. In this case, legal separation can save enormous amounts of money for the bills and other estate costs. Those who never marry can file a legal separation so Illinois can recognize their promises to each other . Keep in mind, the only "advantage" to this may be eligibility for certain types of insurance benefits. One spouse can cut financial ties with the other through legal separation. The spouse no longer pays for health insurance, spousal support or child support. (Support differences may not be relevant if child support is already being withheld from wages.) One partner can make unilateral decisions on debt payoff. The disadvantages of legal separation include some potential long-term issues. There are many reasons why a couple may choose legal separation as a life path. It is not an "easy way out" of a marriage – in fact, people who legally separate often find themselves in a more difficult situation than they were in. In addition, the partners must meet certain financial and residency requirements in order to file for legal separation. Those who choose legal separation must go through the process in a somewhat similar manner to divorce. Someone must file the legal separation with their spouse, file the appropriate petition with the locale courts, serve the other spouse, negotiate the terms, try to settle, go to mediation if needed, and then wait for the court to finalize the separation.
Criteria for Legal Separation
To be eligible for legal separation in Illinois you must have grounds to file for divorce or separate maintenance (the legal term for legal separation). The grounds for legal separation, as with a divorce, must be based in either marital misconduct or irreconcilable differences. As with a divorce, a legal separation in Illinois still requires you and your spouse to have experienced irreconcilable differences if you have been married less than two years. Legal separations for marriages over two years can still be based on wrongdoing, inability to be together, or irreconcilable differences. In addition to grounds for separation, eligibility requires residency within the state of Illinois. Illinois does not require a minimum length of separation prior to filing. So a six-month separation period does not apply. However, you and/or your spouse must reside in Illinois for at least 90 days prior to filing.
Petition for Legal Separation
Once you have drafted a petition for legal separation to file with the court, it is time to actually make the filing. The petitions to be filed with the court are the same petitions as those for divorce, and must be filed with the circuit clerk in the county where either you or your spouse reside. Further, at the same time that you file the petition, you will also serve it upon your spouse (the same as you would in a divorce action) with a summons from the court. At the time of filing, you will also need to pay the appropriate filing fee. In Illinois, the filing fee for a petition for legal separation is the same as that for a petition for divorce. Although it might be possible for the court to waive your filing fee, this will generally only occur in very limited circumstances – i.e. if you are extremely low income. As the filing fees can be considerable, planning for these costs in advance is very important for potential petitioners.
Terms of a Legal Separation Agreement
A legal separation agreement, typically prepared by an experienced Chicago divorce lawyer, is a contract between the parties that resolves many of the same issues as a divorce agreement. Rather than terminate the marriage, a legal separation merely provides the parties with a new arrangement, whether in the form of a court order or a contract based upon their agreement.
In preparing a legal separation agreement, the following are just a few of the terms that are generally important to address in detail:
Child Support. The amount of child support and the modification and termination of child support.
Spousal Maintenance/Alimony. The amount of spousal maintenance/alimony and how the spousal maintenance is modifiable and terminable.
Custody. The schedule of the children who are born of the marriage the visitation schedule of the other parent. This term also has many variant issues such as making decisions regarding the children, who has the right to move out of state, etc.
Property Division. The distribution of property and/or asset valuations.
Debt. The allocation of debt responsibility and the rights of reimbursement after the end of the legal separation/dissolution of marriage.
Hearing Process for Legal Separation
After filing for legal separation in Illinois, spouses must then attend a legal separation hearing. Notification of the hearing is sent through the mail approximately 90 days after filing for a legal separation.
At the legal separation hearing, couples must tell a judge that they intend to separate and provide a reason why this is needed. Courts in Illinois typically do not want to be involved with interpersonal matters between spouses and ask judges to defer to the spouses one last time to work out their issues through a separation. If a separation agreement has already been drafted and both parties are in agreement, a judge could sign the separation agreement at this time.
If a couple has been married for less than two years, they may be required to attend marriage counseling before their separation will be approved. The couple must provide proof of marriage counseling to the court , which could include attendance by the husband, wife or both, or simply proof that marriage counseling was offered. However, no proof of marital counseling is needed if the couple has been married for more than two years.
If both parties agree to a legal separation and both signatures are provided on the separation agreement, the judge will approve the separation and the couple will receive their legal separation in the mail about four to five weeks later. If the separation agreement is signed by only one party, or the other refuses to sign, further action is needed to prove to the judge that a legal separation is needed. This process starts by filing a petition with the court. The couple and other witnesses may then appear before a judge to demonstrate that ending the marriage is not the best option for both parties. The judge will then make a ruling on whether to approve the separation agreement.
Ending or Changing a Legal Separation
The legal separation process can also be modified or ended by the filing of a separate legal proceeding, similar to divorce. Some people who may be separated for a long period of time choose to reconcile their differences and continue their marriage. The provisions of a legal separation that have been agreed upon by the parties during the period of separation will still be in place for the period that the legal separation remains in effect, but the court could implement a modification of the terms as necessary, depending upon the circumstances. At the time of reconciliation, the parties simply notify the court in writing that their separation is over. If the parties are able to agree on the terms of the legal separation, often times the process of legally terminating a separation does not include court attendance. If the parties do not agree on the terms, a hearing may be held to determine the disposition of the legal separation and whether to restore the parties to their former married status.
Just as a legal separation may be terminated, the legal separation could also serve as a precursor to obtaining an absolute (or final) judgment of divorce. In such cases, a party could request a final divorce decree from the court. When ordering a legal separation, the court may also order that a period of legal separation be followed by a final divorce after a fixed period of time. Oftentimes, couples that remain separated for an extended period of time, in an effort to work out their differences, also establish a motion for rule to show cause at the same time that they file for legal separation. This enables the couple to re-look at the issues of their separation at a future date, and to possibly amend the terms of the legal separation.
Pursuing Legal Guidance
Talking to a qualified family law attorney can help you navigate through your responsibilities as a petitioner. Your petition for legal separation ends up getting filed with the family law division in the county where you or your spouse reside. Your family law attorney fills out all court pleadings on your behalf and represents you in hearings when needed. You will meet with your lawyer in preparation for filing. The purpose of the meeting is to discuss key factors in your petition. You’ll also need to go over instructions for filing illegal separation. Your meeting with your family law attorney is a key part of the process . Make sure you go into the meeting ready with the following: While your petition is filed and served to your spouse by your attorney, you still have some key responsibilities. You’re responsible for paying filing fees when you file your petition. You also need to take responsibility for serving your spouse and filing proof that service was completed. A professional family law attorney is familiar with the legal system in your county. That means that he or she can offer advice about local requirements. Your attorney may offer personalized tips based on your living situation. Your lawyer is also there to answer any questions you have throughout the process. Taking time to learn about the legal system in Illinois and how it works will help you get through your case with less stress and confusion.