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What You May Not Know About Separation and Divorce in Illinois

 Posted on September 01, 2016 in Divorce

Many people hear they need to separate before divorce. This leads them to believe a legal separation is a component of divorce – one comes before the other. But legal separation is an entirely different proceeding than divorce. The separation people hear about in a divorce is not necessary a legal state. It is simply the process of spouses beginning to move on and living independently. The fact that these two situations are commonly called the same thing unfortunately lends to the confusion. If you are considering divorce or separating from your spouse, avoid confusion by learning the differences between legal separation and divorce in Illinois. The Chicago divorce attorneys of Fay, Farrow & Associates, P.C. can answer any additional questions you may have.


There is very little uncertainty about divorce. The law calls it the dissolution of a marriage. It is the end of two people’s legally binding union.

Illinois allows for divorce on the basis of irreconcilable differences. This is where the confusion with legal separation comes in. The Illinois Marriage and Dissolution of Marriage Act states if spouses live separately and apart continuously for at least 6 months prior to a judgment dissolving the marriage, there is an irrebuttable presumption that irreconcilable differences exist. This makes it seem like separating prior to a divorce is a legal requirement. But while it might be advisable for you and your spouse to live apart before the divorce under certain circumstances, this is not the same as a legal separation under Illinois law.

Legal Separation

Section 402 of the Illinois Marriage and Dissolution of Marriage Act discusses legal separation. It is a legal proceeding that one spouse can bring to ask for reasonable maintenance, property, or child support when he or she lives apart from the other. It does not end the spouse’s legal marriage. In some cases it comes before a divorce, but a legal separation is not required for a divorce and does not mean a divorce will follow in the future.

In this type of proceeding, one spouse asks the court to declare the individuals legally separated. The parties may have come to a separation agreement to be incorporated into the court’s final judgment, which can include a property settlement, custody plan, child support, and terms for limited or permanent maintenance. Even if the parties did not come to their own agreement, the court can order spousal support. However, a judge cannot value or allocate property without the spouse’s agreement.

People often wonder about the need for legal separation. If people are going to live apart then why do they stay married? There are a number of reasons for this. Some high net worth couples understand that divorcing and dividing all of their shared assets may hurt both of their financial positions and cost them more money than they feel is worth the dissolution. Many individual’s religions prohibit divorce, but legal separation gives them the freedom they need. Spouses may also need an extended time apart to determine if they want to continue the marriage or seek a divorce.

A Chicago Area Divorce Attorney can Help

If you are interested in a legal separation or divorce from your spouse, contact the experienced attorneys of Fay, Farrow & Associates, P.C. at 630-961-0060. We have decades of experience helping individuals move forward with their lives, whether that means separating from their spouses or filing for divorce. We offer a free consultation to learn about your situation and give you a brief look at your legal options.

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