How To Start A Motion For Legal Separation In Illinois: A Comprehensive Guide

Illinois Legal Separation Basics

Filing for separation means the parties will remain married in the eyes of the law, but they will live apart for a certain amount of time, negotiating visitation rights and other parenting time. The difference is that a legal separation contains obligations that can be enforced by the court whereas a divorce truly ends the marriage. The parties might have a financial or religious belief that transcends not going through a divorce. The court may also advise the parties to file for separation due to ongoing and irreconcilable conflict about whether they should actually get divorced.
A legal separation becomes effective once the court’s final judgment is entered, but there are provisions that can prohibit filing for divorce for a set number of days. Generally, if a divorce is filed during a legal separation, the divorce proceeding takes precedence.
A legal separation does not dissolve either spouse’s legal rights or obligations to the other spouse. In Illinois, the legal separation is not valid unless the court enters a written judgment . Similarly, the legal separation does not bar the parties from pursuing a divorce during a legal separation period.
The biggest difference between a legal separation in Illinois and a divorce is that a legal separation does not automatically terminate the marriage. The parties remain married, and the court cannot grant one spouse exclusive rights to obtain alimony or custody of any children unless the separation results in one party becoming destitute and lacking the means of earning a living.
The parties are not legally free to marry someone else unless the legal separation was granted in court. Legal separation, on its own, does not prohibit either party from marrying someone else.
Finally, one party cannot use the separation as evidence for divorce on the basis of irreconcilable differences. The parties need to show that either living together or living apart would be unsafe or impractical.
Obtaining legal separation in Illinois when the spouses are in agreement to remain married but live apart is a less adversarial process than divorce. The court can intervene to resolve spousal issues, but those are minimal.

Requirements for Legal Separation

The eligibility requirements for filing for legal separation in Illinois involve both a residency requirement as well as a jurisdictional requirement.
First, you or your spouse must have lived in Illinois for at least six months before filing for legal separation. It is worth noting that while it is not necessary that the residency be continuous, it is important that it be within the jurisdiction of the court. Without this residency requirement, the court would not have the legal authority to enter any orders on issues of child custody or support.
Second, the residency requirement can be from other states as long as the following conditions are met:
Again, without meeting these requirements, the court does not have the legal authority to make any court orders in a case for legal separation. It is also worth noting that if you and your spouse resided in other states for more than six months during the marriage, the court cannot make any orders in respect to maintenance/alimony or non-maternity child support.
It is incredibly important that you petition the correct court to guarantee that this requirement is satisfied. Any regular circuit court may hear a case for legal separation, but there are no special family courts and jurisdiction for any such proceeding. Cases for legal separation cannot be combined with any type of divorce proceeding.

Filing for Legal Separation

When filing for legal separation, the objective is to clear the official channels so that you are legally separated from your spouse according to Illinois law. The process moves forward based on your existing marital status. If you are already legally divorced or legally separated, then the court may not grant a second separation proceeding unless there are compelling reasons, such as divided property or child custody arrangements.
Your first step is to file an initial petition for legal separation with the circuit court covering the county where you or your spouse currently reside. A list of circuit courts can be found at the Illinois Courts website. After this petition is filed, you will receive a summons. It is at that point that you must serve your spouse with a copy of the legal separation papers. These papers can be served in one of three ways:
 Your spouse can be personally served – served directly through a professional process server, who will hand a copy of the divorce papers to him or her.
 Your spouse can be served by certified mail. The clerk of the court will send your spouse copies of the legal separation papers via certified mail. After a few days, you should receive a signed receipt back as proof of service.
 Your spouse can provide consent. If your spouse agrees that he or she lives in the real world and not in Narnia – In other words, your spouse gets served through a process server, receives a copy of the paperwork and signs a form of consent.
After you’ve served your spouse with copies of the separation papers, you have to wait 30 days to see if you and your spouse can agree on all the terms and conditions in your separation agreement. The length of time it takes for this waiting period to be over depends on when service was complete.
If all parties agree, then you can appear at the initial hearing so that you can both sign the agreement. If you have kids, then the court must meet with you separately to discuss your kids and to let you know what their options are if the case were to proceed to court.
If you and your spouse cannot agree on every term and condition of your separation agreement, then the case will go to trial. Before the case goes to trial, you may have to appear in court for a pretrial conference.

Legal Separation Agreement Terms

A legal separation agreement may include a variety of key components, depending on the stipulations and specific needs of each couple. These components can be included at the discretion of both parties and their legal team, but typically, they cover the following: One of the biggest issues with which separating couples must contend is the division of assets, property and debts. A legal separation agreement outlines the terms and conditions of how the assets will be divided. For litigants who are seeking a no-fault separation, a separation agreement is crucial, as it obviates the need for one party to be deemed responsible for the breakdown of the marriage and the potential division of assets. The separation agreement allows for an equitable division of assets. The duties that both spouses owe one another in terms of spousal support are laid out in the agreement. Issues about the amount of support paid, the duration of payments and what form the support is paid in (direct cash payments or property) are all discussed in detail. Before the end of a marriage, parents may have agreed upon an arrangement with respect to child custody. After the separation, a court order may be in place, but the agreement is still a written record of what both parents agreed to, outlining the terms for visitation, child support and other aspects of accommodation.

Money and Child Custody

Issuance of a legal separation does not give you all the rights as a divorce would typically grant. Namely, the State of Illinois has no provision for the distribution of property in a legal separation so the laws of marital property are not applicable. You can still ask for property division issues to be resolved in your decree of legal separation but the question becomes: why do so? A divorce decree establishes rights under martial property of both parties so all property division issues can be resolved via a divorce. In practical terms, your spouse will strongly object to getting things addressed via a legal separation if they know that they are going to be losing access to the full range of possibilities for property division through a divorce. In a legal separation, a divorce decree cannot be requested. This is because you aren’t technically divorced. Once again, these rights and entitlements are derived from the complete divorce process, so you would be better served to withdraw as a couple and live separate and apart . With a legal separation, you removed your spouse from your taxes as a deduction and it is possible you could now be paying more each year at tax time and/or carrying a larger tax burden. Once again, these taxes only apply while the legal separation is in force so you’re better off having a divorce decree that will see you splitting assets on a pre-tax basis (or assessing who will get to claim the deductions in question). For all child related issues, the court will enter an order that covers the custody issue. This will include determining where children will reside or go to school. These questions are typically decided in terms of "best interest of the child." These decisions may not be able to be altered until the separation is finalized via divorce decree. Child support will also be entered via the legal separation decree. The law surrounding child support and the formula for determining the amounts are derived from the Illinois Marriage and Dissolution of Marriage Act, so the amount of support and who pays it will be the same as if the decree came at the end of a divorce.

Length and Changes to Legal Separation

A legal separation in Illinois lasts for a period of no less than six months. At the expiration of the minimum separation period a party to the legal separation may pursue a divorce. If a party pursues a divorce after having been separated for a minimum of six months, at that time, the court could convert the legal separation into a divorce. Pursuant to Section 4025 of the Illinois Marriage and Dissolution of Marriage Act (the "Act"), once converted to a divorce action, the legal separation shall terminate the rights and interests of each party governed by the legal separation or judgment for legal separation. The court has the power to terminate the legal separation at any time after six months of entry of an order of legal separation; however, a party must file his or her Petition to Terminate Legal Separation within one year of the date of entry of the Judgment of Legal Separation. In the case where no action is taken, the legal separation would terminate in one year from the date of entry of the Judgment of Legal Separation. If a party to a legal separation wants to modify or terminate a legal separation, section 507 of the Act gives the court authority to modify or terminate the legal separation when necessary and in the best interests of the spouses or their children.

Lawyers

When facing the daunting prospect of a legal separation, whether or not to pursue one can be a challenging decision for an individual. The potential financial ramifications and emotional impact on both partners are significant considerations. A couple may be uncertain about whether legal separation is the right path, or they may be looking for information about how the process works. In either case, a consultation with a lawyer who focuses on family law can be a crucial first step to take. The decision to pursue a legal separation is a deeply personal one, but a knowledgeable lawyer can provide facts and details about the Illinois law that will help inform that decision.
A person considering a legal separation can also benefit from obtaining support on a range of practical concerns. For example, if a family owns a business together, a lawyer can help determine whether business assets are likely to be considered marital property , or if a spouse has the opportunity to retain a greater share based on legal protections for small businesses. Practical questions about child custody, property division, etc. can be discussed with a lawyer based on the family’s circumstances and their priorities, and this information can be invaluable in determining a realistic path forward in a potential separation or divorce.
When a couple has made the difficult decision to separate, the process can move more smoothly if a professional familiar with the law can provide guidance. Seeking the advice of a lawyer can also help an individual determine if he or she needs the protections of a protective order, which can help prevent further problems in the household, as well as ensuring a spouse is held to account after moving out of the home. A comprehensive consultation can be the first step toward achieving the legal or financial goals being sought in a separation.