Familia y Seguridad

In Illinois, a legal separation is when two spouses decide to physically and legally separate but remain married to each other. The issues and agreements decided in a legal separation can mirror those of a divorce, such as separating finances, deciding parental responsibilities, and spousal maintenance payments. However, the spouses remain legally married to each other.

A legal separation is different than a physical separation. Legal separation will decide questions about how much child support or spousal maintenance (alimony) should be paid. Any property or debt accrued after a legal separation will be considered non-marital.

In contrast, during a physical separation, legal marriage matters, including property and asset ownership, are unaffected.

A divorce means the marriage is legally over. Ex-spouses can marry other people. The judge can determine the allocation of parental responsibilities, parenting time,  and child support. They can also determine spousal support (alimony) and divide property.

Legal separation is a technical term. It is not the same as separating from one’s spouse by living apart. A legal separation does not legally end a marriage. After a legal separation, spouses are still married. They cannot marry anyone else unless they divorce. A judge can determine the allocation of parental responsibilities, parenting time, child support, and spousal maintenance (alimony). However, the judge cannot divide property unless both spouses agree. A spouse must also ask the court to divide property.

Legally separated spouses can later opt to file for a divorce to end the marriage.

Divorce is usually the best option for many people. However, there are situations where getting a legal separation would make the most sense. A few examples of when getting a legal separation might be preferred:

• A spouse needs to stay married to receive certain benefits, such as:
  • Health insurance,
  • Social security, or
  • Pensions,
• A spouse is not sure if they are ready for a divorce, but they need to be apart, or
• A spouse’s religion or culture prohibits divorce.

In order to file for a legal separation in Illinois, a Petition for Legal Separation (Petition for Legal Separation) must be filed either in the county where the petitioner lived with their spouse, where they live now, or where the spouse lives now. 

The petitioner must have lived in Illinois for at least 90 days before the judge signs the legal separation order. The spouses must be living apart when the petition is filed. If there are parental responsibility issues (custody) to be decided, the children must have lived in Illinois for at least six months.

Spouses wanting a legal separation can learn more about the process in Illinois at Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/402.

Some circuit clerks may have forms for legal separation on their site. If one cannot be found, learn more about how to conduct legal research.

It may be a good idea to talk to a lawyer if you want to file for a legal separation. The lawyer can review your specific situation and provide advice on whether a legal separation or divorce is better for your goals. The lawyer can then help with completing and filing the paperwork.

A lawyer is also recommended in situations where:

• The legal separation is contested: the spouses cannot come to an agreement on major issues involving children, property, or debt;
• One spouse is represented by a lawyer: a pro se spouse is at a distinct disadvantage in a case if the other spouse is represented by a lawyer; or
• There is domestic violence involved in the relationship.

Use Get Legal Help to find a free legal aid organization or private lawyer.