What Is the Difference Between Separation and Divorce

If you are having problems in your marriage, you might be thinking about filing for divorce in Chicago. At the same time, you may have heard about the possibility of separation—and legal separation, specifically—as an alternative to divorce. Is it possible to become legally separated? In short, the answer is yes: One of the parties in a married couple can seek a legal separation. However, it is important to understand how a legal separation differs from a physical separation and, more importantly, how a legal separation differs from a divorce.

An experienced Chicago divorce attorney can discuss the specific facts of your case with you today and can help you decide which option is best for you. In the meantime, we want to provide you with additional information about legal separation under Illinois law.

Physical Separation Versus Legal Separation

The first thing to know about a legal separation is that it is different from physical separation. In other words, simply moving out of the residence you share with your spouse and into a new residence by yourself is not a legal separation. Instead, this is a physical separation, and it does not allow the court to award maintenance or to consider a property settlement. To be clear, a physical separation is not recognized by the law in any significant capacity, and the court does not get involved in a physical separation.

A legal separation is recognized by the court and requires one of the parties to seek a legal separation under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). In order to be eligible for a legal separation, you must already be living separate and apart from your spouse. That is, you may have a physical separation before you can seek a legal separation.

Legal Separation Versus Divorce

Now that you understand the difference between physical and legal separation, it is important to learn more about the distinction between legal separation and divorce. Like in a divorce proceeding, one of the parties seeks a legal separation through the court. When one party seeks a legal separation, the court also may be able to do the following, similar to court actions in a divorce case:

  • Award reasonable child support;
  • Award reasonable spousal maintenance; and
  • Approve a property settlement agreement.

The court will not approve a property settlement agreement or allocate property if the negotiated agreement is unconscionable. At any point after obtaining a legal separation, either party can still file for divorce.

Why would two people choose a legal separation over a divorce? There are a number of reasons that a legal separation may be preferable in some family situations. Some examples include:

  • Religious reasons for wanting to avoid divorce;
  • Desire to keep the family legally intact for purposes of minor children from the marriage;
  • Health insurance and other benefits for the non-primary earner spouse;
  • Financial or tax implications of divorce; and
  • Other reasons for wanting to avoid divorce.

Contact a Chicago Divorce Attorney

If you have questions about the difference between a legal separation and a divorce, a Chicago divorce attorney can provide you with additional information. Contact Arami Law to speak with an advocate about your case.

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