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 maintenance, and divide property.

A legal separation means the marriage is not legally over. Spouses are still married and cannot marry someone else. However, the court can determine child custody, visitation, child support and spousal maintenance. The court cannot divide property unless you and your spouse agree ask the court to divide property.

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

One benefit of getting a legal separation is that you can live physically 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 living physically 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.

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.

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