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Legal Separation

by Wes Cowell, updated 28 November 2015


Legal Separation is an option in Illinois, but the process are used rarely and only strategically. You're probably better off doing a divorce.  Need advice?  Callleave your info, or schedule a consult.


Background:  Legal Separations are an option in Illinois law (750 ILCS 5/402), but they are rarely used.  A legal separation is just like a divorce . . . except you're still married.  Being legally separated differs greatly from "being separated."  When a couple fights and one spouse moves out for a while, that's being separated.  A legal separation is a divorce . . . except you stay married.


Legal Separations are done in the court just like a divorce case.  Papers are filed just like a divorce case.  Both parties appear before a judge just like a divorce case (the Respondent's presence may be excused).  The court may enter awards of maintenance (alimony), custody, and child support just like a divorce case.


Strategy:  In the olden days legal separations were important for some people who believed their eternal souls might not fare as well in the hereafter if their human, physical, embodiment here on Earth was a party to the dissolution of a relationship sanctified by their creator.  For those people, a legal separation achieved all of the technical, legal ends that a divorce would, but the bonds of matrimony were preserved.  Upon arriving at the Pearly Gates, the party could truthfully report to St. Peter he / she never divorced.


Today, divorce lawyers use legal separations strategically in two instances:


  • Where one spouse goes off the rails via substance abuse, mental illness, or suffers some catastrophic trauma and becomes a threat to the financial security of the other.  A legal separation will create two separate financial estates.  We can park all the assets in one estate and let the debts and damage accumulate in the other. The bonds of matrimony remain intact which may be beneficial for other purposes; like insurance, school registrations, retirement benefits, etc.


  • In a divorce case that may drag on for a long time and pass some critical financial deadline, we sometimes take advantage of the benefits of legal separations.  We usually do this in December, each year, in cases that could realize a financial benefit by wrapping it up before December 31st.  Taxes are the most obvious reason, but there are other circumstances where we face a deadline to shelter assets, avoid debt, exercise options, etc.  Unfortunately, many cases present other issues (like, custody) that must be resolved before the divorce can be concluded; and that means the case may drag on for many more months.  In those cases, we run in to court and agree to a legal separation.  That way, the couple gets the tax benefits now and we can wrap up the messy stuff later.


No Fault:  It used to be that the party filing for a legal separation had to prove that he or she did not voluntarily consent to the separation or engage in conduct that led to the separation.  That rule changed 1 January 2016.  Today, legal separations may be by consent.  It is also possible for a party to pack up, move out, and file for legal separation.  750 ILCS 5/402 (a)


Separate and Apart:  Legal separations are available only to those couples living "separate and apart."  Living separate and apart doesn't mean living at different addresses, however.  It means no longer living as spouses usually live.  Because Illinois' legal separation law did away with "fault grounds" in January 2016, we may now look to the "no fault" rules and definitions that have built up under Illinois' "no-fault" divorce law (which has been around since 1977).  When Illinois' "no-fault" divorce law was first passed, the legislators debated what "separate and apart" means.  Here's the salient portion of that debate:


If the judge determines that living separate and apart they have to be living in separate households, so be it. If the judge determines that living ... apart ... they can be living under the same roof but there is [sic ] no conjugal visits, they ... are living in separate bedrooms, they are doing ... their own laundry, their own meals, whatever, that's up to the judge and that's ... what the case law is today.

83d Ill.Gen Assem., Senate Proceedings, November 3, 1983, at 60.


The Illinois appellate courts have considered the meaning of "separate and apart" in a few cases over the years and have concluded that it doesn't mean what most people think it means:


In re:  Marriage of Kenik:  Testimony adduced in Kenik revealed that, although the parties resided in the same house, they stopped "marital relations" a year before the husband filed for dissolution in May 1985, and they continued to live together through September, 1986 . They used separate bedrooms, had no meaningful communication with each other, and shared the family's fundamental financial obligations.  The Kenik court determined that under the no-fault statute, "dissolution is predicated upon a finding of 'irretrievable breakdown' of the marriage due to 'irreconcilable differences' " and that "this is a state which can be realized without physical distance between the parties."  In re:  Marriage of Kenik, 181 Ill.App.3d at 274, 129 Ill.Dec. 932, 536 N.E.2d 982 (1st. Dist., 1989).  The Kenick court concluded the parties had lived "separate and apart" even though they lived in the same household.



In re:  Marriage of Dowd:  Sandra Dowd filed for divorce -- for the third time -- in June 1988. By the time she moved out of the marital home (again!) in July 1988, little conversation occurred between the couple. They still had dinner together, but it was mostly for their son, and any dinner conversation was usually directed toward the son or about the son.  Based on these facts, said the court:


it is apparent that irreconcilable differences existed in this case and that an irretrievable breakdown of the marriage occurred long ago. The evidence established that the legitimate objects of matrimony had been destroyed over the years, that the parties were unable to live together as husband and wife, and that no prospects of reconciliation existed. Although no physical separation . . .  had occurred prior to the dissolution, the parties had been living "separate and apart . . . ."  We conclude, therefore, that the trial court did not err in determining that the marriage between the parties should be dissolved under the no-fault provision of the Act.

In re:  Marriage of Dowd, 573 N.E.2d 312, 214 Ill.App.3d 156 (Ill.App. 2 Dist., 1991)


So, living "separate and apart" simply means not living as husbands and wives usually do.  It does NOT mean living at different addresses.  You may get legally separated and still live together.  


Venue:  You may file your case in:

  1. the county where your spouse resides,

  2. the county where you reside,

  3. the county in which the two of you last resided together.

  750 ILCS 5/402(a)


Temporary Relief:  Once a legal separation case has been filed, the court may order child support or maintenance temporarily while the case is going through court.  750 ILCS 5/402 (b) and  750 ILCS 5/501(a).  These "temporary orders" usually get money flowing to the needy spouse within a few weeks. The court may also prevent spouses from removing children from the state, from abusing or harassing each other, and may grant "other injunctive relief proper in the circumstances."  750 ILCS 5/501 (b) (ii), (iii), and (iv).


The court does NOT have the power to tell the parties what they may and may not do with the marital property.  


Injunctions to Protect Marital Property:  Sometimes, a crafty spouse may try to hide assets.  That might mean:

  • removing the valuables from a safety deposit box;

  • transferring title to assets into the name of another;

  • transferring assets out of the country;

  • borrowing against assets and hiding the proceeds; or other, more crafty dodges. 


Lawyers anticipate such shenanigans and routinely obtain injunctions (protective orders) to protect marital property and preserve the marital estate.  That's not possible, however, in a legal separation.  Because the marriage will remain intact, marital property is out-of-bounds for the court.  If you're involved in a legal separation and fear your spouse may try to hide marital assets your only real option is to convert the legal separation into a divorce and seek an injunction.  By seeking a divorce, you'll make the division of the marital estate part of the court's business . . . and that means the court can act to protect and preserve the assets.  It can all be done in a day . . . so don't delay. 


Marital Property Agreements:  Marital property may be divided a the conclusion of a legal separation, but only if the parties agree.   750 ILCS 5/402(b). The court does not have the power to value nor allocate property absent an agreement between the parties. The court may reject an agreement between the parties ONLY if the court finds the agreement to be "unconscionable."  Any agreement approved by the court automatically becomes final and non-modifiable.  That means that if the parties later convert their legal separation into a divorce, the property addressed in the agreement is off the table -- it may not be re-litigated.


When the legal separation is finalized, the "marital estate" is closed and each party's separate, non-marital financial estate continues, just like in a divorce. 


Divorce:  Parties legally separated may file for divorce.  750 ILCS 5/402(c).  If the legal separation case is still pending before the court and has not been finalized, the procedure is to file for divorce within the legal separation case.  If the legal separation case has concluded, the procedure is to file a new case for divorce.


Maintenance and Subsequent Divorce:  The parties in a legal separation may agree to, or the court may award, maintenance just like in a divorce case.  750 ILCS 5/402(b).  It is not possible for the court to award non-modifiable, permanent maintenance.  The parties may agree to non-modifiable, permanent maintenance, howver.  An award of non-modifiable, permanent maintenance will not be will be binding on the court in a subsequent divorce.  An award of non-modifiable, permanent maintenance, by law, must be incorporated "as is" into the final judgment for dissolution.


An award or agreement for maintenance other than non-modifiable, permanent maintenance, however, will be decided by the court de novo (from scratch) in a subsequent divorce.    



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