Should you get a legal separation or divorce? As Chicago divorce attorneys, we receive many questions from people who are weighing whether they should pursue legal separation or divorce. So how do you choose? Unless there is a religious reason that bars divorce, or some other reason that makes divorce not an option, I would elect to get the divorce.
Whether Legal Separation or Divorce, Court Filings, Agreements, and Paperwork is Required
You still need to file petitions and enter agreements, whether you choose to pursue legal separation or divorce in Illinois. People seem to think that a legal separation is easier to obtain, but you will still need to file pleadings (documents) with the court and negotiate the terms of your legal separation judgment. There is no escape from the necessary paperwork. It seems like a lot of time and money spent to obtain a legal separation when you would still need to come in and get your divorce later if one of you seeks to remarry.
Is a Legal Separation Necessary in Order to Move from my Home?
You do not need a piece of paper from the court to separate from your spouse. You are allowed to move out and do what you want without any negative consequences. I have had clients ask me if that is considered “abandonment” under Illinois law, and I can assure you it does not.
First, we no longer have grounds in the State of Illinois. Even if you did “abandon” your spouse and your home, it would not make any difference. No reason is needed for a legal separation, so that should not an impediment to moving out. Additionally, you will not lose your home or lose any money you would have received if you move out. There is absolutely nothing wrong with moving out of your house if that is what you want to do.
If you do move out though, be sure to get something in writing.
When Judgment of Legal Separation is Important
Marital Property Issues
If you cannot bring yourself to divorce, but you do move out, after a period of time, you should file for legal separation. You do not want to move out and eight years later file for either legal separation or divorce. During the time of your separation, the marital property continued to accumulate. Your pension and/or profit-sharing account has grown and so has the equity in your home. The court does not divide marital property from the date of marriage and the date you separate, it is from the date of marriage and the date of the Judgment of Legal Separation.
Marital property continues to grow when you are separated and up until a Judgment is entered. You do not want to separate indefinitely and then years later come into court. You will want to make the decision to get into court to finalize the separation at some point.
Obtaining Child Support and Spousal Support
You will need a legal separation to get child support and spousal support.
Your Judgment of Separation will look nearly identical to a divorce judgment. There will be provisions for child support and parenting time, as well as spousal support. You need to file an action in court to start seeking these types of financial reliefs.
Accumulating Non-Marital Property
Additionally, once you have your judgment, although you are still married, you will now be accumulating your own non-marital property that will not belong to your spouse. Any monies made in your pension and home will now be deemed non-marital property as well.
Stop Liability for Marital Debt
In addition to non-marital property, you also will no longer be responsible for marital debts.
You absolutely do not want to be responsible for your spouse’s bills. If you do not get a Judgment of Separation, it is still possible to be responsible for marital debts. The definition of marital property and marital debt is anything accumulated during the marriage – from the date of marriage and until the date of your legal separation judgment date.
You do not want to move out and move on, without eventually getting a judgment of legal separation since it opens you up to liability as well.
Call Our Chicago Divorce Lawyers if You’re Considering Legal Separation in Illinois
A legal separation is not necessary to separate from your spouse, but if you intend to stay separated for any length of time, you should file for one and get a judgment entered. You don’t want to be separated for years without a document detailing your financial obligations, or have your hard-earned money be deemed “marital” years later. Please call our office to schedule a call with one of our highly-experienced divorce attorneys if you are considering a legal separation.