What is Legal Separation?

It is not uncommon for spouses to be married yet they live separate and apart. In fact, Section 402 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/402) provides a remedy specifically for this situation. Pursuant to the above-mentioned statute, a party may file a Petition for Legal Separation in the same manner as if filing a Petition for Dissolution of Marriage. Typically, the Petitioner for Legal Separation is filed in the county where the parties last resided together as husband and wife.

When a party files for legal separation the court can decide issues regarding child support and maintenance, just as if the parties filed a Petition for Dissolution of Marriage. The court can also decide issues relating to allocation of parental responsibilities, specifically regarding decision-making and parenting time. It is important to understand that the court cannot value or allocate property in a proceeding for legal separation. However, if the parties have a settlement agreement regarding their property the court will incorporate the agreement into the judgment, at the parties’ request, as final and non-modifiable, so long as the court does not find the agreement to be unconscionable.

When a Judgment for Dissolution of Marriage is granted, the bonds of matrimony are dissolved and the parties are free to re-marry. When a Judgment for Legal Separation is granted the parties are still married. Many parties decide on legal separation, as opposed to dissolution, due to religious beliefs and health concerns. It is highly recommended that you speak to an experienced attorney if you are contemplating legal separation or divorce.

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