If you are in the midst of a tumultuous marriage—or a marriage that lacks the warmth and contentment for which you were hoping—you may have given some thought to a trial separation. In fact, you may have already spent several weeks staying with a friend or family member as you considered whether to file for divorce.
These situations occur frequently enough that they are practically formulaic in today’s culture. A married couple grows apart, one spouse moves out, and, in many cases, a divorce eventually ensues. Common practices, however, are not equivalent to statutory requirements. The fact that most people do something a certain way does not mean that you must do the same in a similar situation. Such is the case with a period of separation prior to divorce, at least according to Illinois law.
The Difference Between Legal Separation and Living Separate and Apart
When most people talk about a separation, they are usually referring to a married couple no longer sharing the same household. The Illinois Marriage and Dissolution of Marriage Act considers such an arrangement as “living separate and apart,” which is very different from a legal separation. A legal separation, by comparison, is a court-issued judgment that formally declares the couple to be separated. Legal separations are sometimes used by couples who do not wish to divorce for personal or religious reasons or those who are not quite ready to divorce. Following a legal separation, orders may be entered for spousal and child support, parental responsibilities, and, if the couple chooses, the division of property....