Anderson & Boback Logo
chicago divorce requirement separation

What Qualifies as Living Separate and Apart in a Chicago Divorce?

Published
Categorized as Divorce, Illinois Divorce

One of the divorce topics we have been asked about recently involves the Illinois requirements for living separate and apart. With Shelter in Place moving into new phases, many individuals are finding that they do not want to remain married to their same spouse during the second wave of pandemic shutdowns.  However, there is a lot of information out there regarding separation requirements for getting divorced in Chicago, all of which should be clarified.

Illinois used to have a two year mandatory separation period for alleging irreconcilable differences as the basis for divorcing.  However, if you alleged grounds, such as mental cruelty or adultery, you could shorten the mandatory separation to six (6) months.  This was changed recently in Illinois law.  Now, the law states that if you have lived separate and apart for six (6) months or longer, there is a rebuttable presumption that irreconcilable differences have occurred, so as to allow you to proceed with a divorce.  Many litigants wonder what a six (6) month separation means, exactly.

Can We Be Living Separate and Apart While Living in the Same House?

You can live in the same household during your separation.  During the last recession, many couples wanted to get divorced but could not afford to live in separate residences.  Therefore, they had to live separate and apart under one roof.  This is permissible in an Illinois divorce.  A divorcing couple can live in the same house but in separate parts (i.e. someone sleeps in the guest bedroom, and the other spouse in the master bedroom or lives out of the basement, etc.  It is completely fathomable that two people can live at the same address and be considered separated for purposes of Illinois law.

When is our Separation Date?

The separation date may not be the same date for both parties in a Chicago divorce.  Sometimes, one party may start a new relationship, and to that person, the date that they began the new relationship is the date the marriage first broke down.  Other couples may go through a period without any intimacy and the beginning of that time may be the beginning of the separation period.

The start date may not be the same for both parties.  But, if they can agree on a start date that is more than six (6) months previous to the date the divorce is entered, there won’t be any debate about which separation date is “correct” as it is a moot point, so long as one of the parties truly believed the separation date was more than six (6) months prior and the other person doesn’t object.

What About an Attempt at Reconciliation?

If parties try to reconcile the marriage while separated, that does not count against the separation date.  In other words, attempts at reconciliation do not count “against you” and the date you began living separate and apart.  So, let’s say someone had an affair a year ago and the other party found out, and the couple decides to separate.  If they go through a month of trying to rekindle their relationship and reconcile their differences, but then decide that, again, it isn’t working out, they could technically still utilize the first separation date.

Separation Date is Circumstantial and Varies with Each Case

The separation date is completely circumstantial and varies with each case.  It is important to consult legal counsel about this issue to avoid any delays in proceedings if there is uncertainty as to when your separation date was and if it has been six (6) months.

Was this information helpful?

You May Also Like

Wonder if your spousal maintenance is modifiable? This question was addressed in Scarp v. Rahman when the father in the case of sought to modify his maintenance obligation.  The trial court would not allow the modification so he sought an…

Birthdays are a big deal to kids - they usually get a party with their friends with cake, balloons, presents, and if they are lucky, a ball pit to jump into at Chucky Cheese! The day is all about them.…

Our firm represents a lot of military families and for the most part, handling a military divorce is just like any other divorce.  There are specific rules that need to be followed, however, and those parents in the military facing…

Changes to Spousal Maintenance Law in Illinois In 2019, a significant change in the tax code was made regarding maintenance, which resulted in spousal maintenance (formerly known as “alimony”, also known as “spousal support”) being tax-free to the recipient and…

Illinois has modified its statutes wherein parents are now allocated “parental responsibilities” and “parenting time” instead of “custody”.  The purpose of these changes was to try and give the parents less to fight over.  You can win “custody” but winning…

For Illinois parents that are no longer together or facing divorce, understanding the basics of child custody law is important. First, the term “custody” no longer exists in Illinois. The State of Illinois changed its laws regarding custody in 2016,…

RECENT POST
Categories
Archives
Anderson & Boback small logo

Download our Divorce Planning Guide today!

Get the information you need to prepare for divorce with our free resource Guide to Planning for Your Divorce.

What our clients are saying

Schedule a Discreet Consultation Today!

    Firm Overview
    ANDERSON & BOBACK

    Anderson & Boback is a highly-respected, experienced Chicago family law firm, skilled in negotiation and litigation. When divorce and other family law issues make your life chaotic and uncertain, you want your case resolved as quickly and fairly as possible. Call Now 312-715-0870