Many spouses separate before or during their divorce. One of the individuals will move out of the family home, and they start to live apart physically, emotionally, and financially. However, this is not the same as being legally separated. In fact, legal separation has nothing to do with divorce. Instead, it is its own distinct court case, one in which one individual brings an action against the other to seek support or maintenance from their spouse, whom they do not live with.
Obtaining a Legal Separation
Under the Illinois Marriage and Dissolution of Marriage Act, specific factors need to be met in order for a couple to be legally separated. First, the couple must already live apart. This means the spouses do not live in the same house at all. It does not count if they live in separate areas of the home.
Next, one of the individuals files a case seeking support or maintenance. The process is the same as a divorce or any other lawsuit. The petitioner files a complaint and serves the other party. They will then appear in court and potentially meet outside of court with their attorneys present to discuss the issues addressed in the complaint.
The individual who files for legal separation must demonstrate that the separation did not occur because of their fault. For instance, if the separation occurred because of infidelity on their part, the individual may not be granted the legal separation and support.
The Consequences of a Legal Separation
A legal separation is generally used to seek limited relief in unique circumstances. The individual who files does so to receive spousal or child support while still legally married but living apart.
Becoming legally separated is not the same as a divorce. It does not dissolve the marriage or divide any of the marital property (unless the parties agree to do so in a legal separation settlement). Neither spouse is allowed to get remarried until they obtain a divorce. If one spouse dies during the separation, the other still inherits through the deceased individual’s will or Illinois intestacy laws.
Reasons for Seeking Legal Separation
Many people simply separate and then, after a period of time, one of them files for a divorce. However, there are many reasons why an individual might seek a legal separation from the courts. Couples with deep religious beliefs may not believe in dissolving their marriage but need to live apart. Or, if one spouse was abused by the other, a legal separation allows them to live separately from their husband or wife but receive support before filing for and obtaining a divorce.
Contact a Naperville Divorce Attorney
If want to know more about legal separation or divorce, contact the experienced DuPage County family law lawyers at our law firm. We can explain your rights and the pros and cons of a legal separation. If you decide this is the best avenue for you and your family, we will guide you through the process of seeking a legal separation judgement in court.
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