Legal Separation

Legal Separation
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Last updated: April 2011

What Is the Difference between a Divorce and a Legal Separation?

A divorce means the marriage is legally over, and ex-spouses are free to marry others. The court can determine child custody, visitation, child support, spousal support, and divide property.

“Legal separation” is a technical term; it is not the same as simply separating from one’s spouse (i.e. living apart, etc.). A legal separation does not legally end a marriage. Therefore, after a legal separation, spouses are still married and cannot marry anyone else unless they first dissolve the current marriage. A court can determine child custody, visitation, child support and spousal support. The court cannot divide property unless you and your spouse agree and ask the court to divide property.

If you do not think you can live with your spouse, you can file for legal separation. Obtaining a legal separation does not prevent you or your spouse from obtaining a divorce later.

 

What Is the Difference between a Legal Separation and Not Living with My Spouse?

A legal separation is different than a physical separation. Legal separation will decide questions about how much child support or maintenance should be paid. Remember, “legal separation” is a technical term.

One benefit of getting a legal separation is that you can physically live apart from your spouse without being considered to have "abandoned" your spouse. Abandonment of at least 1 year is a ground that can be used against you in a "fault" divorce.

 

How Do I Get a Legal Separation?

To get a legal separation, you must be physically living apart from your spouse when you ask the court for a legal separation. You must also not be "at fault" in causing the separation. "Fault" can include actions like adultery or abandonment of at least 1 year. There are other grounds for fault as well.

How Long Do I Have to Live in Illinois to Get a Legal Separation?

To get a legal separation in Illinois you have to live in Illinois for more than 90 days.

Can I Still Get a Legal Separation if My Spouse Does Not Live in Illinois?

Yes, you can still get a legal separation in such a situation.

If your spouse has never lived in Illinois, the court can give you a legal separation. The court may not be able to decide issues like child support and maintenance.

When Can Custody Be Decided with a Legal Separation?

The children must live in Illinois for 6 months before the court can decide custody.

Where Should I Ask for a Legal Separation?

The best place to ask for a legal separation is in the county where you lived with your spouse. The next best place to ask is the county where your spouse lives.

If your spouse does not live in Illinois, you can ask for a legal separation in the county where you live.

You can begin a legal separation by filing a petition with the Circuit Court Clerk of the appropriate county. For a list of circuit courts, view the Illinois Courts website.

 

How Do I Ask for a Legal Separation?

To ask for a legal separation in Illinois you must:

  • Fill out and file a petition for legal separation and a summons
  • Serve a copy of your petition and summons on your spouse
  • Contact either the Circuit Clerk or the secretary of the judge who usually handles the legal separation cases to request a hearing date.  Some counties require you to send a notice to your spouse of the hearing. If this is the case, you will need to complete and send the notice form to your spouse. You will also need to file the Certificate of Mailing to show when you mailed the notice. If you are unsure how to proceed with a legal separation, ask the Court Clerk of the court in which you plan on filing, or consult an lawyer
  • Go to the hearing and explain the fact in your case to the judge. Then you should tell the judge what you want them to do
 

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