Legal Separation

There is a common misconception with the term legal separation. People often think it is a solution to a couples’ marital issues, providing the space and time to determine whether they want to get a divorce. However, legal separation and physical separation are two very different concepts. Physical separation refers to the parties ceasing to live together and cohabitate as husband and wife, with each party having their respective space and time apart, without undergoing a legal process to divide the marital estate. However, legal separation involves a legal process and allocates the division of the marital estate, similar to a divorce. 

First, let’s take a step back to explain what the “marital estate” is. You may have heard people say “oh, we keep our finances separate”, even when a couple is married. However, under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), a marital estate is created starting the date of the marriage, and money earned, and a majority of the assets or debt created after said date, is the marital estate. This can be income, gains on retirement accounts, a residence purchased during the marriage, cars, and debts. The title of these debts and assets, jointly or individually, will not matter in Illinois and all will be included in the marital estate. There are some exceptions for what may be determined to be non-marital property.

Unlike a physical separation, a legal separation can represent the end date of a relationship similar to a date of divorce, meaning you no longer accrue marital property and marital debt, even though you are still legally married. When you are legally separated, this means that any assets, income, or debts accrued after the separation are not tied to one another.

The process of getting legally separated is similar to a divorce, but there are distinct differences. The main one is that the couple is still legally married, while divorce ends the marriage entirely. When legally separated, both parties cannot marry anyone else until they obtain a formal divorce.

Another key difference in a legal separation has to do with marital property. Under Section 750 ILCS 5/402 of the IMDMA, the parties may agree to divide property. However, if the parties cannot agree how to divide property in a legal separation, the court is not allowed to make a determination as to the value of the property or how it should be divided. In a divorce, the court can make a determination as to the value of property and how it will be divided. The legal separation agreement, once entered by the court, is final and not modifiable. The agreement is akin to what one views as a divorce decree but it is only a separation document, not an actual divorce. Similar to a divorce, even if the parties agree to a division, the court can also disapprove of the agreement to divide property if it finds it unconscionable. The legal separation agreement can also determine other aspects involving the couples’ separation, such as child support and maintenance (formerly known as alimony), which would also be addressed in a final divorce decree. However, even if support terms are determined in a legal separation agreement, if a divorce is filed and the parties cannot agree on support, the court will make a determination regarding support without looking to the terms of the legal separation agreement. Parenting time and decision making responsibilities for minor children can also be included in a legal separation agreement.

When does it make sense to get a legal separation? Legal separations are most beneficial for couples who do not want to lose certain marital benefits in Illinois, such as health insurance, social security, and pensions. It may also be an acceptable alternative for people who have religious or cultural beliefs, which may discourage or prohibit divorce. Some people contemplating divorce may elect to obtain a legal separation first while determining whether or not divorce is the next step. However, it is important to again note that a legal separation is not a divorce. If, during a legal separation, the couple decides to divorce, they must still go through the divorce process. Under most scenarios, it is typically easier to get a divorce since you have already started separating your lives and may have already agreed upon terms of support and asset and debt division. Furthermore, even if you file for divorce, there is an option to withdraw the initial Petition for Dissolution of Marriage or be placed on a reconciliation calendar if you wish to pause or end the divorce proceedings.

If you have a legal separation agreement that has been entered and have since decided to obtain a divorce, the traditional divorce procedure is followed. The Law Office of Erin M. Wilson is available to provide valuable guidance and help navigate legal separations and divorces following legal separations. To schedule a consultation, contact The Law Office of Erin M. Wilson at 312-767-4220.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.