When a marriage becomes strained, couples face challenging decisions. Should they opt for a divorce or consider legal separation? Understanding the key differences between these two legal processes is important to make an informed choice. In Illinois, legal separation offers a path to living apart while retaining some marital benefits. However, it’s not the same as divorce. In this article, we explore the nuances of legal separation, its implications, and why some couples might choose legal separation over divorce.
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Legal Separation vs. Divorce: What’s the Legal Difference?
Legal Separation in Illinois allows you to live separately from your spouse and it divides the assets of the marriage. With Legal Separation, you and your spouse can stop being financially tied to each other by agreement – the debts, real estate, bank accounts, and more would be settled and separated during the Legal Separation process. You and your spouse can also settle issues of your children such as child custody and child support. The same is true for the divorce process, but in addition, divorce in Illinois dissolves the marriage. Legal Separation, however, does not terminate the marriage, so, you would not be able to remarry someone else, as the marriage has not ended.
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Limitations of Legal Separation
Aside from not being able to remarry, another limitation to Legal Separation is that a Court can only order certain kinds of remedies. Illinois law limits the temporary relief available in a Legal Separation to only Temporary Child Support, Temporary Spousal Maintenance, and Petitions for Restraining Orders.
[T]emporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501.
So, in a Legal Separation, the property cannot be divided unless you and your spouse agree to it.
“If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions: (1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds the agreement is unconscionable; and (3) such an agreement is final and non-modifiable” 750 ILCS 5/402(b)
Understanding the limitations of legal separation can guide your decision-making process.
Why Choose Legal Separation Over Divorce?
Couples might choose legal separation over divorce for various reasons. Staying legally married allows you and your spouse to retain financial benefits like health insurance and other federal perks. Sometimes legal separation is chosen for social and cultural reasons.
Financial Considerations
With a Legal Separation, you may be able to keep sharing a health insurance plan with your spouse. However, many health insurance companies treat Legal Separation the same as divorce. If you are considering Legal Separation instead of divorce for this reason, be sure to double-check with your health insurance plan if this is a possibility before pursuing Legal Separation, and raise the issue early in your case.
Military Benefits
Similarly, you may be able to retain spousal military benefits with a Legal Separation. However, a marriage of 10 years or longer is usually required before the spouse of a military service person may receive certain types of benefits. Please review our Military Divorce page for specific insights on the nuances of military divorce and spousal benefits.
Immigration Benefits
Some immigration benefits may be available to you and your spouse after a Legal Separation. The farther you’ve gotten in the process of obtaining a green card through your spouse, the better your chances are with Immigration Services to overcome a Legal Separation. You may need to provide evidence that your marriage remains real. Be sure to consult with an immigration lawyer for issues pertaining to a Spousal Petition for Citizenship.
Social Security benefits are tricky because the federal government will still view you and your spouse as married. In a divorce, you can start to receive your ex-spouse’s benefits once you reach retirement age. In a Legal Separation, however, you cannot draw from your spouse’s Social Security until they decide to opt in. Alternatively, you and your spouse can agree for them to opt-in, but defer taking the benefit for themselves. Just like military benefits, a 10-year marriage is usually required in order to collect from your ex-spouse’s Social Security benefits. Below is guidance from Social Security Administration to determine whether a marital relationship exists. SI 00501.150: Determining Whether a Marital Relationship Exists Social Security Act §1614(b) and §1614(d) – Regulations 20 CFR 416.1801 through 416.1835
- Two individuals are married for SSI purposes if they are legally married under the laws of the state where they make their permanent home.
- Two individuals are no longer married for SSI purposes as of the date that … [t]hey receive an issuance of a final decree of annulment or divorce.
- If the couple alleges that they are legally separated, consider the couple to be married since a legal marriage still exists.
In many cultures and religions, divorce is strictly prohibited. Legal Separation may offer a form of relief for couples who can’t divorce due to their other personal values. Many religions find Legal Separation acceptable because keeping the marriage legally intact prevents remarrying someone else.
Additionally, because it is not final like a divorce, a Legal Separation can offer time for couples who need a break. Couples can “test-drive” their separate lives without the strain of financial uncertainty or custody disputes. If you and your spouse reconcile and decide to jump back into full marriage, you can reverse the Legal Separation by filing a Motion to Vacate the Order of Legal Separation.
A Legal Separation Can Become a Divorce Later
If the limitations of a Legal Separation become too much for you or your spouse, either one of you can file for divorce.
A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted. 750 ILCS 5/402(c)
If there were certain agreements reached in the Legal Separation, those agreements will stand in the subsequent divorce unless they are explicitly stricken in the divorce judgment.
Therefore, pursuing a Legal Separation instead of a divorce requires you and your spouse to be on good terms and agree to many issues in order to have the best of both worlds.
If you’re considering legal separation or divorce, Anderson Boback & Marshall can guide you through the process. Our experienced Chicago divorce attorneys are here to help. Contact us today for a consultation and let us assist you in navigating the legal complexities.
