Legal Separation or Divorce? Know Your Options

 Posted on September 01, 2018 in Legal Separation

Even if you believe that your marriage is over and irreparable, leaving your spouse and pursuing a divorce can be difficult to do. However, divorce is not your only option: legal separation is an alternative.

What Is Legal Separation?

Unlike a divorce–which completely and legally dissolves a marriage–a legal separation does not legally end a marriage. When spouses enter a legal separation, they will still be married in the eyes of the law until a divorce takes place. This means that those who are legally separated cannot remarry.

Legal Separation vs. Living Apart

There is also a difference between a legal separation and simply living apart. While you and your spouse may be living apart physically, the separation will not be a legal separation unless you turn to the court and ask it to make decisions about things like child support, child custody, and spousal maintenance. For many couples, having the court issue a determination in regards to these issues is critical; some couples may have such a contentious marriage that negotiating these issues outside of court is impossible.

Can I File for Divorce if I’m Legally Separated from My Spouse?

One of the benefits of a legal separation vs. a divorce is that a legal separation does not have to be a permanent decision. In fact, sometimes, a legal separation is exactly what a couple needs while working out personal or relationship issues. In some cases, couples who are legally separated will resume their relationship at a later point.

If this does not happen for you, however, and your legal separation only confirms your initial feelings of wanting to be separate from your spouse, divorce is still an option. Divorce can be pursued at any point when a couple is legally separated.

How to Start a Legal Separation Case

There are two primary requirements for being granted a legal separation by an Illinois court:

1. You and your spouse must be living separate and apart at the time the petition for legal separation is filed; and
2. The party who is seeking the legal separation must prove that they are not at fault for the separation.

In order to begin the process, you must file a petition with the clerk of the Circuit Court asking for separation. Your petition and summons will then be served to your spouse. Finally, your case will go before the court, and a judge will issue a decision regarding the settlement of issues in your case (i.e. child custody and spousal maintenance).

Our Naperville Legal Separation Attorneys Can Help

Separating from your spouse and living independently can be extremely difficult to do. Even more complicated is understanding the legal process for this separation. At the law offices of Fay, Farrow & Associates, P.C., our Illinois family law and divorce attorneys are here to help. To schedule a consultation with our law firm, please call us directly today or send us a message. We serve clients in Naperville, Lombard, Downers Grove, Aurora, Wheaton, and Lisle.