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The Basics of a Legal Separation

 Posted on April 14, 2017 in Divorce

Naperville family law attorneyWhen a couple is considering a divorce—which is an extremely difficult decision and, often, a long, arduous process—they may decide that a legal separation is in their best interest. Under Illinois law, a legal separation represents a sort of middle ground between marriage and divorce, but, as a practical matter, such arrangements are not all that common. Many couples who opt for a legal separation do so to leave the possibility of reconciliation open or because of particular religious beliefs. There may also be financial reasons for filing for a legal separation instead of beginning the divorce process.

Why a Legal Separation?

A legal separation is about as close to a divorce as one can get without legally ending the marriage. In some circumstances, the decision to legally separate may be mutual. In others, one spouse may petition the court for approval of a separation. In a separation, just as in a divorce, the parties will agree or the court will determine an appropriate level of spousal maintenance, as well as parenting arrangements and child support where applicable. This helps to ensure that all parties, including children, are properly cared for by the terms of a legally enforceable agreement or court order.

During a legal separation, the court will not force the couple to divide their marital assets, as would occur during a divorce. If the couple decides to do so, they may present a negotiated property settlement to the court for approval. Any property acquired, however, after a legal separation will not b considered marital property if the couple later seeks a divorce.

It is important to note that the core difference here is that a legal separation does not legally end the marriage, thus neither spouse can remarry unless and until the couple completes a separate proceeding for divorce. A legal separation is not an official first step to a divorce, either. Couples can remain legally separated for the rest of their lives.

Qualifying for a Legal Separation

There are no legal “grounds” for a legal separation, meaning that the petitioner does not need to cite a particular reason for wanting a separation. Before filing, however, the spouses must be living in separate homes. The petitioner must also meet the state’s residency requirements and have been a resident of Illinois for at least 90 days. While Illinois courts may recognize an order of legal separation for spouses living in different states, enforcement of support provisions may be more difficult.

A Lawyer Can Help

If you are considering a divorce or a legal separation, it is crucial for you to know your available options and rights. Contact an experienced DuPage County family law attorney at Pesce Law Group, P.C. to get the guidance you need. Call 630-352-2240 for a free consultation with a member of our team today.


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