Last updated: April 2011

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

A divorce means the marriage is legally over. The court can determine child support, maintenance and divide property.

A legal separation means the marriage is not legally over. However the court can determine child support and maintenance. The court cannot divide property unless you and your spouse agree.

If you don’t think you can live with your spouse, you can file for legal separation.

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

A legal separation is different than a physical separation. It will decide questions about how much child support or maintenance should be paid.

A legal separation can affect wills and inheritance. You should talk with an attorney if you have questions.

See the “Helpful Organizations” section below.

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?

If your spouse lives in another state, you can still get a legal separation.

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.

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 do the following:

• 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;
• Attend the hearing and explain the fact in your case to the judge. Then you should tell the judge what you want them to do.

Helpful Organizations
The following organizations may be able to help you with

For a list of organizations in your area that may be able to help you, enter your zip code.

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