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Can We Get Divorced If We Have Not Separated?

 Posted on January 26, 2017 in Divorce

Naperville divorce attorneysMany divorce cases follow a similar pattern of events. A couple whose marriage is on the brink of failure will usually separate for a period—sometimes more than once—as the spouses try to determine their best course of action. By the time they make the decision to divorce, several months have passed, if not more. From there, the couple moves into the process of dissolving their marriage. While this is a very common scenario, it is important to understand that the legal requirements for divorce may not be what you expect.

Legal Separation

You probably know at least one person in your life who is currently estranged from their spouse but not legally divorced. If you were to ask them to define their marital status, both parties would likely say that they are separated. According to Illinois law, however, that is not entirely accurate. A couple can be only declared legally separated by a judgment of legal separation, which is similar in most respects to a divorce though the parties remain married to one another. Most couples will never be legally separated before their divorce.

When one spouse moves out of the marital home, the law refers to this situation as living separate and apart. In certain cases, a couple could also be considered living separate and apart while still residing under the same roof. For many years, a no-fault divorce in Illinois required spouses to live separate and apart for as long as two years before their divorce judgment could be entered, but recent changes to the law have eliminated that requirement.

No Separation Required

Today, a divorce on the grounds of irreconcilable differences can proceed immediately if the spouses agree to the dissolution and stipulate that the marriage is beyond repairs. If there is disagreement on this point, the court will accept a six-month period of living separate and apart as irrefutable proof that the marriage has broken down. The new law took effect last year as part of a sweeping reform to the Illinois Marriage and Dissolution of Marriage Act.

If you live in Illinois and are considering filing for divorce, contact an experienced DuPage County divorce attorney before you make any important decisions. Our knowledgeable team will help you ensure that you have addressed all of the necessary concerns and that your rights are fully protected. Call Pesce Law Group, PC today at 630-352-2240 to schedule your free initial consultation.


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