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. A judgment for legal separation may be entered for spousal and child support, parental responsibilities, and, if the couple chooses, the division of property.
Separation and Divorce
For the purposes of most divorce cases, neither type of separation is required by Illinois law. Legal separation is not a requirement for divorce under any circumstances. A period of living separate and apart is only necessary for situations where the spouses do not agree that the marriage has broken down and is beyond repair. In such cases, if the couple lives separate and apart for a period of at least six months, the court will accept the separation as irrefutable proof that irreconcilable differences have led to the breakdown of the marriage. If there is no disagreement about the condition of the marriage or the intent to divorce, the law does not require the spouses to live separate and apart for any length of time; divorce proceedings can begin immediately.
Let Us Help
Divorce and its inherent considerations can be complex and overwhelming, but you do not have to go through the process alone. Contact an experienced Kane County family law attorney to discuss your situation. We will provide the guidance you need and the compassionate, personalized service you deserve. Call 630-377-7770 for a free consultation at Bochte, Kuzniar & Navigato, P.C. today.