All About Legal Separation in Illinois
Under Illinois law, legal separation is the first step before pursuing a divorce. But this legal recourse is often overlooked, as many couples are unaware of what a legal separation really is and how it’s different from a divorce. In a nutshell, legal separation is basically a "separation by way of the law." The couple who is looking to get a legal separation will file an official petition with the state and thereafter be granted some kind of official separation agreement. There are three most common kinds of separations: 1) statutory separation (based on the statute); 2) judicial separation (based on court rulings); and 3) written separation (based on a private agreement). Taking a look at the first type, statutory separation is meant to ensure that neither spouse can sue for divorce in the future. If someone violates the terms of a statutory separation , that person could be prosecuted. Judicial separation is a court-ordered separation agreement whereby the spouses are allowed to live apart, but the marriage is still considered valid. This option is a temporary separation for legally married couples. As for the third option, a written separation agreement is essentially the same thing as a judicial separation. The difference is that it’s not technically a legal separation because it doesn’t involve the judicial system. Thus, the couple remains married and both parties should agree to the terms. Legal separation can apply to either a married couple or to one or more of the spouses in a civil union. The process of separation itself is very simple. One spouse files a petition with the court and there must be an agreement made with terms such as child custody, alimony, division of assets, and other issues that could be covered in a divorce proceeding. Then it could take several months to finalize the order.
Financial Security and Division of Property
Beyond facilitating a smoother divorce process, legal separation can provide individuals with financial safeguards that would typically only be accessible through a divorce. A legal separation in Illinois often prescribes the division of assets, management of debts, and even the protection of an individual’s income. These provisions can offer financial security that can help both spouses avoid problematic financial outcomes during what is, for many, a difficult transitional period. The protection of assets is often achieved by way of a court order. An order can place certain property – such as homes, vehicles, and bank accounts – outside the control of one or both spouses. Without such an order, either spouse can freely spend money from joint accounts or apply the equity in a home toward third parties. An individual can also protect themselves from debt while pursuing a legal separation. For example, suppose you and your spouse have credit cards for which you are both equally responsible. Further suppose that you make the vast majority of the family’s income and that such income is therefore the only "exemption" source from which creditors could collect assets. (We discuss what is meant by an "exemption" asset below.) Were you and your spouse to divorce without an order in place, that extra money would be available to your spouse should they incur thousands of dollars of credit card debt. In other words, were you to divorce, you would essentially be "at risk" of incurring that debt. However, such a risk can be avoided with a legal separation, wherein an order may be issued that prevents a spouse from obtaining more credit cards during the process. Such an order will not, however, protect the spouse from joint liabilities incurred prior to the separation. Also worth noting, some attorneys will recommend that spouses undergo a formal or informal attempt at mediation before filing for divorce. This can be beneficial as issues such as the division of assets and liabilities can be discussed with the intention of coming to a mutually agreeable solution. However, these solutions do not offer the protections of the court. There is nothing to stop one spouse from spending more than 50 percent of the existing assets or spending recklessly on credit cards. If the spouse wanting to avoid a financially detrimental divorce takes the proper steps, however, it is possible to create an asset division strategy that protects both parties.
Custody and Support of Your Children
Legal separation in Illinois often addresses child custody and support arrangements, as it is critical to ensure that all children’s needs are met. Legal separation agreements can provide the necessary framework to accomplish this, and can do so in a number of ways.
For one thing, the legal separation agreement itself can make very detailed provisions regarding the time share that each parent will have with the child. For example, the agreement can provide that the child has "primary residence" with one parent (as opposed to "joint legal custody" or the like) and will spend weekend and overnights with the other parent at certain specified times. That parent, of course, will then be responsible for most of the transportation, the costs associated with transportation, etc. The legal separation agreement may also contain very specific provisions on picking up the child from school, dropping him off at a given location after visitation, or details about phone calls or emails between the non-residential parent and child. These provisions might have a penalty for non-compliance, including a make-up visitation, temporary loss of the right of visitation, etc. Such penalties, however, can be scary to both parents.
The parties may also provide a mechanism in the agreement for enforcing the visitation schedule, should one parent withhold visitation from the other. That mechanism should be very specific, as there are a lot of variables with which to deal. For example, can the non-compliant parent see the child on another day or time later that week? Can visitation continue after the extraordinarily annoying scheduled date, if the first date is missed (due to whatever reason)? Is there a penalty, and should the child be required to participate in visitation if he or she resists?
The substance of school, medical, extra-curricular, religious, and disciplinary issues can also be addressed. While some of these issues are easier to address than others, there is no doubt a good opportunity to create a road map and give certainty to the parties involved. Once again, though, the problems of changing possession, unexpected events, and so on should be accounted for, to the extent possible.
Maintaining Your Health Insurance Coverage
The benefit of maintaining a health insurance policy provided by one spouse’s employer during legal separation in Illinois is that it avoids or delays the economic burden of finding replacements for medical insurance. The practice of separating from a spouse while remaining married offers a distinct financial edge in this area. Since the cost of health insurance is so high, if an individual can afford to pay premiums on a separate personal insurance policy, that in addition will cover family health care needs, the need to be granted additional temporary spousal support, or additional child support, may no longer be necessary.
The Obama Administration recently mandated that adult children (under 26) who would otherwise be on an employer’s group insurance plan may remain on a parent’s plan, even if the child is employed. On the other hand, continuing on employer-provided insurance is less than ideal for some dependent children, such as those working toward their college degrees. A full time student may need frequent check-ups, and other medical care for substantial, unpredictable needs. Although if a student is covered on his or her parent’s plan until age 26, the plan may cover the dependent while he or she is receiving daily outpatient therapy for a chronic illness—and bill the remaining deductible amounts to the account associated with the parent.
Financial necessities such as those described above are also major incentives for parents to avoid costly divorces, or high conflict parenting disturbances due to their sting of separations and divided assets. It’s no secret; many Illinois couples stay legally married, but live separate lives, as partners-in-name only; to protect and preserve health and other traditional benefits. Additionally, a legal separation decree, under the Illinois Marriage and Dissolution of Marriage Act, is a documented, enforceable order that offers couples the consistent coverage of a court-mandated benefit plan.
Social and Mental Factors
When you break up with a spouse, it can feel like a divorce without the documentation. While people may think of legal separation as a step to divorce, it actually serves various benefits in and of itself. This is especially true when it comes to emotional and social considerations. Instead of thinking about the first inkling of a separation as the end of your relationship, consider it as a transitional phase in which you still have time and room for personal growth against a backdrop of essentially living in a married state. This approach allows you a full 24 months of separation in which time you could have a change of heart or grow as people to better handle your relationship.
The 24 months that Illinois law affords you for legal separation is more than just a waiting period. It offers you and your spouse time to grow as individuals and reflect on your relationship. It can be beneficial to you if you’re making a peaceful separation and you recognize that you need to work on yourself . It’s also a good option if you feel that there’s still enough value in your relationship to mend it later on. While you still have the choice to divorce after this period, emotional and social considerations could make you change your mind about divorce; this option could help you get your footing in the wake of a major change.
While you can live under the same roof and still work to salvage your marriage, living separately gives you some privacy to work on yourself without the added stress of handling your marriage. Although you’ll still be married in the eyes of the state, you’ll have a little space to help you gather your thoughts about where you are and where you want to go.
Legal separation offers a unique resolution to a marriage problem. When neither spouse is ready for divorce, Illinois gives you the option to forego it for a while and take some space to evaluate your choice for the future.
Legal Separation Leading to Divorce
Legal separation can be used as a strategic step for couples thinking about divorce. While the decision to separate is significant, and one that many couples will go through, filing for legal separation does not necessarily mean you have fully made up your mind. Instead, legal separation can be viewed as a trial period for determining whether divorce is in the future. As such, the law in Illinois regarding legal separation and divorce are essentially the same, making the experience of separating and then divorcing the same process.
If you are unsure about whether your marriage can be salvaged, legal separation will help you make that determination on your own timeline. It puts some distance between you and your spouse without the pain of permanent separation. It allows you to test the waters before taking the plunge.
Legal separation can be viewed as an intermediary step between the decision to move out or leave the relationship and filing for divorce. Although you will be separated as if you were divorced, your legal documentation of the separation puts you in control of your future. You may ultimately be able to resolve issues in your marriage and reconcile it moving forward, but because you will have the status of being permanently separated, you will also be free to proceed with divorce proceedings if you determine this is necessary.
Our firm can assist you with this process in order to ensure that the separation agreement provides you with the protections you need before you take the next step.
How to File for Legal Separation in Illinois
For most couples who decide to live separately, a simple agreement works well. In many other instances, an increasingly common option is legal separation. It is important to understand that divorce and separation are fundamentally different. A divorce ends a marriage legally. A separation simply describes a different living arrangement for a couple without legally ending their marriage. Whether in an amicable or contentious relationship, getting started with a legal separation is a relatively clear process. The answer to the question of whether legal separation is a good choice can sometimes be more complicated, depending on whether issues like community property or child custody are involved. Below are the key steps in the legal separation process: Step 1: File for legal separation Just as with divorce, a petition for legal separation must be filed with a Circuit Court. This can be done by either spouse at the courthouse where you or your spouse have lived for at least three months before filing. You will need to include the reason for your separation and any requested relief. You will need to file two copies of the petition with the court and pay a filing fee. Step 2: Notify spouse One or two weeks after filing for separation, you will be served with the Notice of Initial Status Hearing. The Notice will inform your spouse of the status hearing and let them know when and where to appear. If you are not able to serve your spouse , you will have to petition the court for permission to serve them in another manner. Step 3: Prepare for the initial status hearing After serving the Notice of Initial Status Hearing on your spouse, your case will be assigned to a judge. You can check which judge is assigned to your case by looking it up online. It is often helpful to consult a family law attorney to help with the preparation of paperwork filing and submission of information necessary for the hearing. Step 4: Attend the status hearing The purpose of the initial status hearing is to give the judge background on the circumstances of the separation and review any potential safety concerns in advance of a trial. During this hearing the judge will review information about the financial aspects of the separation and evaluate the physical and emotional safety of the parties involved. Step 5: Trial If the judge does not approve you for temporary maintenance, the case will move to trial. It will be up to you to provide the evidence, such as documentation of financial issues, to move the case forward. You may need to hire expert witnesses who are knowledgeable about the issues in your separation. Due to the highly sensitive nature of issues involving custody of children and spousal support, couples intending to pursue a legal separation should consult with an experienced family law attorney to ensure they are fully educated on the potential benefits and risks of the legal separation process.