What to Expect from a Legal Separation

 Posted on February 13, 2025 in Divorce Mediation

When marriages break down, most couples opt to file for divorce. For some, however, there are compelling reasons to file for a legal separation before choosing the permanent solution of divorce. A couple may decide to legally separate and live apart to see whether they want to remain married.

Some couples have religious reasons to avoid divorce and may legally separate instead. With health insurance so expensive and sometimes difficult to obtain, some couples may remain legally married to continue having health insurance while living apart as legally separated. Under an Illinois legal separation, you are still legally married but living apart.

Your separation agreement can determine the allocation of parental responsibilities, parenting time, child support, and spousal support until one or both partners decide to live together again or divorce. More information regarding legal separation in the state is below, but your best source of information is a Will County, IL family law attorney.  

Is the Court Involved in a Legal Separation?

A legal separation is similar to a divorce, as a legal judgment confirms the separation status. A legal judgment not only formalizes the arrangement but also allows the court to issue orders on many of the same issues as it would during a divorce.

It is important to note that simply living in different homes does not make a couple’s separation legal. Even if the couple made decisions on their own regarding child support, custody, spousal support, and asset division, either spouse could decide he or she did not like the arrangement with no court order to keep it in place.

How Do You File for Legal Separation?

One spouse must have resided in the state for at least 90 days before filing for legal separation. If there are children involved who have not lived in Illinois for at least six consecutive months, the court may not have jurisdiction over matters pertaining to custody. Before the petition for legal separation is filed, the couple must have lived separately and apart. The petition must be filed either in the county where the non-filing spouse resides, where both spouses lived as a married couple, or where the filing spouse is currently living.

When filing for legal separation, an "explanation" of the reasons a spouse is filing for separation must be included. The couple can set forth their own terms of child support, spousal maintenance, division of assets, and allocation of parental responsibilities and parenting time, or, if they cannot agree, the judge will make these decisions, just like he or she would in a divorce. Once the petition for legal separation is filed, the other spouse must be served with the petition and summons and given a chance to respond.  

Is There a Time Limit for Legal Separation?

There is no set amount of time that a legal separation can last, and, in fact, it can last indefinitely. At any point during the separation, either spouse can file for divorce. If the issues determined during the legal separation are working well for all those involved, the judge may decide that those decisions will remain in place. If either spouse wants something different, like more child support or a different custody arrangement, then they would petition the court for that change during the divorce.

What is the Primary Difference Between a Legal Separation and a Divorce?

The biggest difference between divorce and a legal separation is that the division of marital assets is not addressed, nor is the allocation of marital debt. Couples who have few assets and little debt may not find this to be a major stumbling block in a legal separation. Couples who are legally separated are allowed to continue filing as married, receiving the tax benefits that go along with that status.

Contact a DuPage County, IL Legal Separation Lawyer

If you and your spouse have determined that a legal separation is preferable to divorce – at least for the time being – speaking to a Naperville, IL legal separation attorney from Law Office of Ronald L. Hendrix, P.C. can be extremely beneficial. Attorney Hendrix holds a master’s degree in guidance and counseling in addition to his law degree and is a court-appointed mediator. Call 630-355-7776 to schedule your free consultation.