What is a Legal Separation?

In divorce practice, legal separation is not often used.  However, it is a remedy that is still available to those parties seeking separation, but hesitant to divorce.  Two main reasons that couples choose legal separation over divorce are: (1) when one spouse is terminally or very ill and both parties wish to keep that spouse under the other spouse’s health insurance; and (2) for religious reasons when divorce is not desirable.

Illinois, particularly after January 1, 2016, will be a completely no-fault state.  This means that you can seek a legal separation, regardless of any fault committed by you or your spouse, and ask the court for reasonable support and maintenance while you live apart. 750 ILCS 5/402

Agreements for property settlements in legal separations are necessary after January 1, 2016, as the court may not value or allocate property in the absence of an agreement.  750 ILCS 5/402(b) after amendment by P.A. 99-90.  Additional language that is included in the new statute relates to filing for divorce after a legal separation.  Absent an agreement in the legal separation that provides for non-modifiable permanent maintenance, if a party to a judgment for legal separation files an action for dissolution of marriage, the issues of temporary and permanent maintenance shall be decided de novo. 750 ILCS 5/402(c) after amendment by P.A. 99-90.  This means that issues of temporary and permanent maintenance will be decided “anew,” and without relation to the previous orders or evidence presented.

Lastly, it is important to mention that after a legal separation, you are not divorced.  You, nor your spouse, may marry again, unless and until, your marriage is dissolved in a divorce.

Leave a Reply