A couple that is experiencing difficulties may opt to have a period of separation rather than simply divorcing. Legal separation is also a way for parties that don't qualify for a divorce (because they haven't yet established residency, or for other reasons) to receive many of the rights available in divorce. A legal separation doesn't legally end a marriage, but it does allow for child support, visitation, and maintenance (also called spousal support or, in the context of divorce, alimony.) Courts do not generally divide property in legal separations.
Illinois Legal Separation Laws Overview
A legal separation is simpler to acquire than a divorce, one reason some parties choose to separate before divorcing. Most importantly, Illinois legal separation actions do not have a residency requirement. A spouse who is separated, and not at fault for the separation, can file a Petition for Legal Separation and thereby acquire many of the legal remedies available in a divorce action. The petition can be filed in the other spouse's county of residence or in the filer's own county if the other party cannot be found.
The following chart lists additional requirements and information about the process of obtaining an Illinois legal separation:
Illinois Statutes, Chapter 750, Families § 5/402
|Requirements for Legal Separation
- The parties to the marriage must be living separate and apart at the time the court action is initiated;
- The marriage partner seeking the judgment of legal separation must establish that they are not at fault in causing the separation.
The process for receiving a judgment of legal separation in Illinois requires:
- The person seeking the legal separation files a petition with the Clerk of the Circuit Court stating that the parties live separate and apart and that they are without fault in causing the separation;
- A sheriff's deputy delivers a copy of the petition and serves a summons on the other party to the marriage, who then has an opportunity to file an answer and any defenses to the separation;
- The case is then heard by a judge who renders decisions on the issues raised by the parties and reviews the parties' agreement if they are able to reach one.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
If you have additional questions about Illinois legal separation laws, click on the links below for more information:
Getting a Legal Separation? An Illinois Attorney Can Help You
Legal separations are simpler than a divorce, but since they deeply impact your legal and financial relationships they shouldn't be taken lightly. The assistance of a qualified legal professional can help ensure that an already stressful situation doesn't end with your former partner taking advantage of your ignorance. Protect your interests; meet with a local Illinois family law attorney today.