LIVING SEPARATE AND APART

Misconceptions in Divorce: Living Separate and Apart

The Illinois Marriage and Dissolution of Marriage Act requires that, prior to filing for divorce, the parties must live “separate and apart” for a certain period of time. Section 401 of the Illinois Marriage and Dissolution of Marriage Act provides that, in order to obtain a divorce, the parties must live “separate and apart for a continuous period in excess of two years.” However, the parties may waive this two year separation period if they have been living separate and apart for at least six months and sign a waiver of the two year separation period. I have noticed that this concept often confuses most clients. Most clients assume that “separate and apart” means the parties must live in different residences. However, this is simply not the case.

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 plain language of the statute, most people would assume that, if the parties continue to live together, the “separate and apart” requirement is not met. However, Illinois 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 simply 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.

If you are contemplating divorce and have questions regarding whether you meet this criteria, please feel free to contact our office.

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