Divorce vs. Legal Separation: Deciding Which is Right for You
When systemic problems appear in marriages that threaten their long-term survival, couples will typically try a number of palliative measures to fix these unhealthy issues. Divorce is not an option most go to easily or quickly but often sits as a possible remedy in the background.
Commonly, couples will look to the least disruptive method of resolving unhealthy issues before escalating to alternatives that may affect other family members, especially children. One option that is short of divorce, but allows struggling couples to obtain a formal arrangement to govern certain legalities as they live apart, is legal separation. This legal route differs from divorce because the marriage is not dissolved, but stills permits a Judge to impose legal obligations and property arrangements similar to those decided in divorce cases.
Legal separation requires the filing of a petition with the Family Court, so securing the services of an experienced family law attorney is the best way to ensure the procedure goes smoothly and results in the optimal outcome.
Why Choose Legal Separation?
Legal separation primarily functions to set up the allocation of parental responsibilities and the payment of child support and spousal maintenance without formally ending the marriage. Specifically, a Judge may determine which spouse is responsible for financially supporting a child and/or spouse, and the amount to be paid. Further, child custody and visitation issues can be sorted out, along with which spouse has the right to live in the marital home.
A Judge will not divide property in a legal separation proceeding, but if the parties agree to their own division, the Court will uphold the division as long as the agreement is fair. However, note that any agreement on property division certified in a legal separation case is final and non-modifiable if divorce is later sought.
On the other hand, this process does offer an important benefit to parties that do not agree to a property settlement. A legal separation judgment marks the cutoff for property division purposes if a divorce is later initiated, such that any property acquired by either spouse after the legal separation is issued is not considered marital property, and will not be divided.
An additional consideration parties need to keep in mind when evaluating the benefits of legal separation is the fact that parties cannot remarry until a divorce is finalized. Connected to this limitation, if a spouse dies while the legal separation is in effect, the surviving spouse is entitled to inherit to the same extent as a spouse in any marriage.
To qualify for this legal option to divorce, Illinois law imposes a few conditions parties must meet. First, the spouses must be living separately when the petition for legal separation is filed, and second, the party requesting the Court intervention must show he/she did not cause the separation.
Additionally, the parties must satisfy the same residency requirements demanded in divorce cases, including:
- At least one party must be an Illinois resident for a minimum of 90 days; and
- The child must live in Illinois for at least six months before a Court can decide child custody issues.
Contact an Illinois Divorce Attorney
Divorce is a big decision with many legal ramifications. If you have concerns or questions about divorcing your spouse, as well as any alternatives, speak with a knowledgeable Palatine divorce attorney before taking this significant step. The Law Office of Richard W. Richardson, P.C. serves clients throughout northwest Chicagoland in a variety of divorce and family law matters, and will work to obtain the outcome you desire.