Legal Separation vs. Divorce in Illinois
When facing challenges in a marriage, the decision to separate can feel overwhelming. Understanding your options under Illinois law can help you make the best choice for your unique situation. Two common legal paths are legal separation and divorce. Each option offers distinct outcomes, and it’s important to know what they mean and how they might affect your future.
What is a Legal Separation?
A legal separation allows spouses to live apart while remaining legally married. This option can be beneficial for couples who are unsure about ending their marriage permanently or who have personal, financial, or religious reasons for not pursuing divorce.
In Illinois, legal separation provides a framework for resolving issues like:
- Parenting time and decision-making responsibilities for children
- Division of property
- Spousal support (if applicable)
However, a legal separation doesn’t:
- Dissolve the marriage. Both parties remain legally married and cannot remarry.
- Divide all property permanently. Only assets or debts specifically addressed in the separation agreement will be divided.
- Change your tax status to single or head of household. In fact, you may have to file married, filing separately.
Legal separation can be a stepping stone for couples who want space to evaluate their relationship while maintaining certain legal protections. Living apart is not a legal separation. Instead, its simply living apart or being separated. A legal separation requires the court’s approval.
Why Divorce Instead?
Divorce, also called dissolution of marriage in Illinois, legally ends a marriage. Once a divorce is finalized, both parties are free to remarry and move forward independently. Divorce also involves resolving critical issues such as:
- Allocation of parenting time and responsibilities
- Division of marital property and debts
- Spousal maintenance (formerly known as alimony)
Unlike legal separation, divorce provides a permanent end to your marital life with that spouse. The court will divide all marital property, and there will be a clear conclusion to your financial and legal ties (except for those related to shared children).
Key Differences Between Legal Separation and Divorce
- Marital Status: Legal separation preserves the marriage, while divorce terminates it.
- Remarriage: You cannot remarry if you are legally separated; only divorce allows for remarriage.
- Religious or Moral Beliefs: Some people opt for legal separation due to religious or moral beliefs that discourage or prohibit divorce.
- Health Insurance and Benefits: In some cases, a legal separation allows one spouse to remain on the other’s health insurance plan. Divorce typically ends this coverage unless COBRA or similar options are pursued.
- Reconciliation Possibilities: Legal separation can leave the door open for reconciliation, as the marriage remains intact. But you might have to go to court to undo the legal separation
When Might Legal Separation Be the Better Choice?
- You and your spouse are not ready for a divorce but need time apart.
- You want to retain certain marital benefits, such as health insurance or tax advantages. Beofr you head down this road, however, check with both the insurance and a tax advisor
- You have religious or cultural beliefs that discourage divorce.
When is Divorce the Better Option?
The marriage has irretrievably broken down, and reconciliation is not possible.
You want a permanent resolution to financial and legal ties.
You are ready to move forward independently, including the possibility of remarriage.
If you’re considering legal separation or divorce in Illinois and need guidance, contact me. Let’s discuss your situation and explore your best path forward. With over 20 years of experience, I can help you navigate these complex processes and find the right solution for your family.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It is essential to consult with an attorney to discuss your specific situation and legal options.