Filing for Legal Separation

The decision to get a divorce is sometimes made after a couple has been apart for a while. This may sometimes be because the couple is not completely sure that they want to end the marriage, or because the couple needs to remain married for some reason, for example, if one spouse is covered under the other spouse’s medical insurance. Spouses who are not quite ready for a divorce may decide to get legally separated instead.

Legal separation in Illinois is a legal process through which a couple can live apart after a court makes decisions on certain issues relates to the marriage. Once a court declares a couple legally separated it operates as though the couple is divorced, except the couple cannot remarry because they are still legally married.

During a legal separation, a court can make determinations regarding parental responsibilities, time sharing, child support, and spousal maintenance. However, the court cannot make a ruling on the division of marital property without the couple requesting the division, and without an agreement by the spouses on how the property is to be divided. The court does not have to accept the agreement if the court feels is it not a fair division of assets among the couple, or if the court feels the agreement is unconscionable.

Without a decision on marital property in a legal separation, each spouse still has access to the marital assets. Some people may worry that their spouses will misappropriate the marital assets, or try to hide assets in order to avoid the assets from being given to the other spouse in a divorce. Therefore, for peace of mind, couples who file for legal separation should always consider getting an agreement together for the division of marital assets.

Once a couple is legally separated, any assets accumulated by each spouse are no longer considered marital property and cannot be divided as such if the couple later goes through with the divorce. This is also true of marital debts. So legally separated spouses are no longer jointly liable for each other’s debts if the debts are incurred after the legal separation.

Legal separation does not affect the couple’s ability to get a divorce. No matter how long the spouses have been legally separated, they can file for divorce at any time.

Contact an Experienced Attorney

If a divorce is not possible, either for personal or religious reasons, and your marriage has fallen apart, you can consider filing for legal separation. Instead of simply moving out of your home, getting legally separated can offer more protection during your time of separation. For more information on filing for legal separation and getting child support or spousal maintenance while legally separated, contact the passionate Naperville divorce attorneys at the Roscich & Martel Law Firm, LLC for a consultation.


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