The main difference between separation and divorce is that, when you’re separated, you are still legally married to your spouse. While separations often lead to divorce, divorce is not inevitable once a couple decides to separate. Some couples take some time off from each other to reassess the state of their marriage. Some people decide to take a new, more successful approach to their marriage after that, while others decide to make the separation permanent by filing for divorce.
First, there’s the distinction between a trial separation and a legal separation. A trial separation is when you and your spouse decide, on your own, to live apart for a time to take a break from your marriage. The separation can last as long as you want, since it has no official end date, and you and your spouse are free to divide up the bills and assets during the separation as you see fit. This works pretty well for most people, to the point where some states don’t even provide legal separation as an option.
Obtaining a legal separation requires a court order and often involves much of the same legal processes as a divorce.
Separation is a kind of middle ground between marriage and divorce. You and your spouse remain legally married and cannot remarry until you obtain a divorce. In a legal separation, the judge cannot divide marital property unless the parties agree to the division, but they can determine custody issues, child support, and alimony for the duration of the separation.
Like divorce, in order to obtain a legal separation, you have to file a petition for legal separation in the county in which you live, then serve your spouse with papers informing them of your intention to separate.
In Illinois, you are required to have lived in Illinois for at least 90 days before you can ask for a separation in Illinois. You can still request a legal separation in Illinois if your spouse lives in another state, as long as you have lived in Illinois for the minimum required time period.
If children are involved, then the children must have lived in Illinois for at least six months before an Illinois court can determine custody. If your children live with your spouse in another state, you will likely need to file for separation in the state in which they live. Be sure to look up that state’s requirements before you file or speak with a licensed attorney there.
Once you file for a legal separation, the court will begin the legal process, and that process will ultimately end with the Judge setting a hearing date, much like a divorce hearing. There you will have your opportunity to present your side of the case and the judge will make their decisions regarding custody (or parenting time, as it’s referred to in Illinois), child support, and alimony.
Don’t forget that mediation is always an option and can help the separation process. It can make the entire process go much more smoothly than if you and your spouse are forced to abide by terms laid out by a judge. Couples who mediate their separations and divorces are more likely to abide by the terms of the agreement and are less likely to end up back in court.
The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.