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Chicago divorce requirement for separate and apart

Living Separate and Apart Requirement in Illinois Divorce

Categorized as Illinois Divorce

Before an individual’s Petition for Dissolution of Marriage can be granted, certain requirements need to be met.  Those requirements are outlined in the Illinois Marriage and Dissolution of Marriage Act and, more specifically, can be found in section 750 ILCS 5/401.  Section 401, entitled “Dissolution of Marriage,” provides, in pertinent part, as follows:

that the Court can grant a judgment for Dissolution of Marriage to the parties and formally dissolve the bonds of matrimony if it is true that one of the parties (either the individual bringing the divorce case, or the individual being called into court to litigate the divorce proceeding) lived in the State of Illinois at least 90 days prior to the case beginning, or lived in the state of Illinois at least 90 days prior to the court issuing a finding that the parties are no longer in a position where they can get along and reacquaint themselves so as to become compatible with each other again. 

In other words, the Court wants to ensure that the parties can no longer return to a formal state where they were happy being around and near one another.  In doing so, the Court assesses whether or not it would be possible for the spouses to give their marriage another chance and if doing so would be healthy for the parties and their families.  

Presumption of “Living Separately and Apart”

With regard to the presumption of “living separate and apart,” there is a presumption Courts are allowed to make.  Illinois divorce law provides that if the parties have been living separately from one another for a period of at least six (6) months, then the Court is allowed to conclude that the parties have surpassed any point of reconciliation. What is important with regard to this factor is that it does not only require that the parties live separately and apart for six (6) months but also requires them to do so continuously.  If the parties, at any time, act in such a way as to not exist separately, then that period of six (6) months is considered to be interrupted and must begin again.  

What Does It Mean to Live Separate and Apart?

What is meant by the term “separate?”  Does this mean physical separation, as in you and your former spouse need to live in separate homes?  Living separate and apart for a period of six (6) months does not necessarily mean you and your former spouse have to be living in different homes.  Rather, you and your former spouse must not be engaging in behavior that would otherwise suggest to the Court that you both are still acting as a married couple.

Most clients assume that living separate and apart means the parties must live in different residences. However, this is not the case.  This is one of the misconceptions in divorce.

In today’s economy, it is not uncommon for spouses to live in the same home throughout their divorce proceedings simply because neither spouse can afford to move out of the marital home. Given the law’s specific wording, most people would assume that if the parties continue to live together, the “separate and apart” requirement is not met. However, Illinois family law courts have long recognized that just because the parties continue to reside together does not mean that their marriage is not broken down or that they have not been living “separate and apart.” As a result, courts generally hold that the “separate and apart” requirement does not require the parties to live in different homes. Rather, the “separate and apart” requirement requires the parties to stop cohabiting as a married couple within the home for the requisite period of time. For example, two spouses will be considered to be living separate and apart if they continue to reside in the same home, but sleep in separate bedrooms.

For example, when you and your spouse are married, you might have slept in the same bed or gone out to dinner with friends. Now, if you had to provide evidence to the court, your testimony might be that you no longer acted as a couple, that you have separate bedrooms, and you do not socialize together. These are examples of “living separate and apart.”

Need Legal Advice About Living Separate and Apart Requirement in Chicago Divorce?

If you are contemplating divorce and need a Chicago divorce lawyer to answer your questions regarding whether you meet these criteria or any other divorce concern, don’t hesitate to contact our office.

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