Chicago divorce specialist answers the question “What is the difference between a legal separation and divorce in Illinois?”
As a divorce specialist in the Chicago area, I am exposed to many misconceptions about divorce law. For example:
People often mistakenly think that they are “legally separated” if they live in separate residences. In actuality, a legal separation is a marital status, just as is divorced or married. (Section 402 of the Illinois Marriage and Dissolution of Marriage Act). In order to be legally separated in Illinois, a court must approve the legal separation and enter a court order to that effect.
If a spouse desires a trial separation and not a divorce, a legal separation is a vehicle to provide that spouse with support during the separation. However, it should be noted that while providing a legal support obligation, that same section, Section 402 of the Illinois Marriage and Dissolution of Marriage Act, also states that a legal separation does not bar the other spouse from obtaining a divorce if the requirements for a divorce are met.
Today, a legal separation is rarely used instead of a divorce. The primary reasons are:
- During the period of actual separation, attorneys can agree to an informal arrangement for spousal support, so it is not necessary to obtain a formal court order of legal separation.
- Pursuant to federal and state law, a spouse with a chronic illness no longer needs to remain married in order to obtain continuing health insurance coverage.
- In order to obtain a legal separation, a spouse must retain a lawyer, who then files a court case to obtain a court order. Should there later be a divorce case filed, a second set of additional attorneys’ fees will necessarily be incurred for representation in the divorce action.
