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UPDATE: Do We Need to Separate Before Filing for Divorce?

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separation, Will County divorce attorney

Originally published: July 6, 2016 -- Updated: September 10, 2021

UPDATE: As described below, Illinois law no longer requires a couple to separate before they can complete their divorce. However, many couples choose to separate before or during the divorce process. In some cases, spouses may use a “trial separation” to help them decide whether they should move forward with the dissolution of their marriage. In other cases, one spouse may decide to move out of the family home after filing for divorce. 

Divorcing spouses or those who are pursuing a legal separation should be aware of how a separation may affect their rights and the decisions in their case. A pre-divorce separation may result in complications involving:

  • Property division - While all assets owned by a couple must be divided fairly and equitably, a separation may affect decisions related to ownership of property. If one spouse moves out of the family home, the other spouse may be awarded exclusive possession of the home during the divorce, and they may also claim that they should maintain ownership of the home or household items such as furniture.

  • Child custody and child support - A parent’s decision to move out may affect decisions about the allocation of parental responsibilities and parenting time. If children will continue to live primarily in the marital home with the other parent, that parent may be awarded primary custody of the children. A non-custodial parent will usually be required to pay child support to the other parent during and after their divorce.

  • Spousal support - If a separation will leave one spouse at a financial disadvantage, they may ask that the other spouse pay ongoing financial support to ensure that they will be able to meet their ongoing needs. If a spouse who moves out of the family home earns the majority of the family’s income, they may be ordered to pay spousal support in addition to covering their own living expenses. If a spouse who relies on the income earned by their partner moves out, they may be able to receive financial support to ensure that they will be able to meet their ongoing needs.

 

If you are considering a legal separation or want to determine how moving out of your home will affect your divorce, our Plainfield family law attorneys can answer your questions and provide you with legal representation. Contact us at 815-666-1285 for a free consultation.


If you have ever filled out an application for a credit card or another purpose, you may have been required to check a box regarding your marital status. While the options nearly always include “single – never married,” “married,” “divorced,” and “widowed,” some go one step further and list an additional choice: “separated.” For many people, this raises questions about how common it is for a couple to be separated, especially those who are likely headed for divorce. Does a couple need to be separated before a divorce will be granted?

Legal Separation and Living Apart

The option of “separated” on an application usually refers to a legal disposition for the purposes of either financial responsibility or demographic tracking. Legal separation is much more complicated than one spouse moving out and both parties telling people that they have separated. In fact, legal separation typically involves most of the elements of a divorce, except that the marriage is still legally intact. While many couples who are legally separated eventually get divorced, very few who get divorced are ever legally separated.

The more casual understanding of separation, however, is a different story. Most couples go through some type of separation period prior to divorce. One spouse may find an apartment or move back in with his or her parents while the couple decides whether to permanently end the marriage or not.

Requirements in Illinois

The Illinois Marriage and Dissolution of Marriage Act was recently updated to eliminate the mandatory period of separation that was once required for a no-fault divorce. Before January 1, 2016, a couple divorcing on the grounds of irreconcilable differences was required to live separate and apart for at least two years before their divorce would be granted. The separation could be reduced by agreement of the spouses, but could never be less than six months.

Today, however, there is no longer any mandatory separation period. The amended law does reference a period of separation, but only in cases where both spouses are not in agreement regarding the divorce. In those situations, a six-month separation will be accepted by the court as definitive proof of irreconcilable differences, and the divorce may proceed.

Guidance for Your Divorce

When you are considering a divorce, it is very important that you have all of the information necessary to make an informed decision. Contact an experienced Will County family law attorney today to discuss your situation and get the answers you need to whatever questions you may have. Call 815-666-1285 or 815-733-5350 for a free, no-obligation consultation.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=0

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