The decision to legally separate is a difficult one to make, particularly where children are involved. Couples usually reach the decision after due consideration and after attempts to reconcile their differences under the same roof have been exhausted. When they take this step, they still have the rights and responsibilities of a married couple. However, as with a divorce or dissolution of marriage, a judge addresses the parties’ reasons for separating in a judgment of court or agreement of legal separation.
Many married couples separate temporarily while they work through their problems, whether they stem from financial disagreements, a lack of communication, or simply not getting along. They may want to work on their marriage – and perhaps try counseling – and believe that some time apart will help them resolve their issues. Unlike a trial separation, however, a legal separation is a serious and sometimes lengthy process that typically entails a court-ordered procedure which in many respects is not too dissimilar from pursuing a divorce.
So, why do some couples request this new status?
1. As an Alternative to Divorce
Perhaps the most common reason for separating is that couples simply don’t know whether they want to divorce. Most marriages hit a rough patch now and then, and it’s understandable to feel unsure of the state of your marriage during one of these periods. A couple may still care about each other but struggle with religious or cultural differences. Oftentimes, the parties suspect they’re headed toward divorce, but one or both aren’t ready to cross that line yet.
Depending on the circumstances, there may also be potential benefits to remaining married, such as:
- Certain religions frown upon divorce; if one is deeply religious and his or her religion forbids divorce, they may look to legal separation as an acceptable alternative;
- To save money by filing taxes jointly;
- For one spouse to remain on the other’s health insurance policy (although many health insurance plans are starting to treat legal separation like a divorce, thus triggering the necessity to obtain a continuation policy pursuant to COBRA); or
- So former long-term spouses can claim Social Security benefits or military benefits.
2. Disagreements Over Marital Issues
A legal separation is not required if one desires merely to physically separate from his or her spouse. When couples do so, it’s often because they can’t agree on certain issues on their own. Changing one’s status to being legally separated from their spouse generally means a court will be involved in determining issues such as maintenance or spousal support, child support or parenting time, similar to a divorce. A legal separation can help a couple establish financial boundaries even though they’re still technically married. For example, a separation agreement can stipulate which partner is responsible for making mortgage payments, paying taxes, and other actions regarding jointly owned property. However, unlike divorce, unless the couple have an agreement as to how their property will be divided and allocated between them, the court may not value or allocate such property absent an agreement of the parties. Even if the parties agrees as to the division of their assets and liabilities, the court can nonetheless reject any such agreement, just like it can in a divorce situation, if it finds that the agreement is unconscionable.
3. As a Path to Divorce
Divorce is a painful and time-consuming process for most couples. Understandably, some people prefer to take steps gradually toward that goal, even if the end of the marriage seems inevitable. One party may feel a sense of shame over the marriage ending or a stronger desire to work things out and reunite. While it’s possible to remain legally separated indefinitely, couples who separate usually end up divorcing within a few years. Illinois’ legal separation statute permits either party to file a petition for dissolution of marriage at any time during the legal separation process.
Since more complex divorce cases can take more than a year to resolve, it makes sense that legal separation will be a step toward divorce for some couples. Especially if two spouses aren’t getting along, it can create a more stable environment for their children as they consider the road ahead. You can use the time to negotiate terms and establish the details of spousal maintenance and other conditions, including property division, that a divorce would eventually entail.
4. To Hold Both Parties Accountable
Separating legally gives both parties a legal framework in case one of them doesn’t follow the terms of their agreement. If your spouse fails to pay child support while you’re separated, a judge can force him or her to pay. There can be consequences for violating a separation agreement, from being held in contempt of court to being forced to pay a penalty. Without a legal agreement in place, the terms won’t be enforceable on either end.
Discuss Your Separation with an Illinois Attorney
Illinois law requires you to list the terms of your separation agreement in writing. Generally, it outlines details of terms such as:
- Child support;
- Property division (by agreement only; without agreement the court in a legal separation procedure doesn’t have jurisdiction to approve a property settlement agreement);
- Allocation of parental rights and responsibilities;
- Visitation terms; and
- Spousal support.
Before taking this step in your marriage, be sure to talk to a family law attorney who is familiar with the filing process and the laws underpinning the legal separation process. In Illinois, only one spouse needs to file a petition for separation, but you need to include a reason for making the request. If you want to physically separate, i.e., reside in a separate household from your spouse, but can’t afford to, the state allows couples to declare they are living “separate and apart.” This means they are no longer living as a married couple even if they share a home.
If you’re considering a legal separation from your spouse, an experienced family attorney at Davis Friedman can walk you through the filing process. Our highly esteemed team of experts has vast experience with legal separation and divorce and will help ensure your rights are protected. Contact us today to find out more about your options
