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Legal Separation

By Elliot Heidelberger

One of the most frequently misunderstood areas of family law is the Legal Separation. Clients often believe that it is necessary to obtain a Legal Separation before filing for a Dissolution of Marriage (Divorce). Others often believe that by living separate and apart for a certain period of time they have automatically become legally separated. Neither are correct.

The requirements for a Legal Separation are:

1. The parties cannot be living in the same residence, and
2. Both of the parties must either have voluntarily consented to living apart or the non-petitioning party must have done something which contributed to the disruption of the marriage.

Legal Separations in Illinois are uncommon for a very simple reason. It does not dissolve the marriage or give finality to the relationship. At the same time the parties will each incur attorneys’ fees and court costs. In the end the parties remain married to each other but not living together.

Of course, a Legal Separation may be exactly what is needed when the parties have separated, one of the parties requires financial assistance and for some reason that party does not want to dissolve the marriage. A Legal Separation may be thought of as “Separate Maintenance”, as it is often referred to.

It may also be useful when parties do not want to divorce but have agreed to separate, have agreed on the contribution to the support by one party to the other, and would like to avail themselves of certain income tax benefits, which are afforded by the Internal Revenue Code, by paying ‘alimony’.

The entry of a final judgment (court order) for legal separation will terminate the acquisition of marital property. This means that any property acquired by a party following the entry of the judgment for Legal Separation belongs only to the acquiring party and will not be divided by the court when and if the marriage is dissolved.

Last but not least, another major distinction between a Divorce and a Legal Separation is that in a Divorce the court has the authority to allocate the parties’ property between them. In a hearing for a Legal Separation the court does not have the authority to divide or allocate property unless the parties agree to give the court the authority to do so.

Your attorney should be consulted prior to your making the decision about whether a Legal Separation is right for you.

For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.