There are many reasons that a married couple in Chicago might decide to get a legal separation instead of a divorce. For example, one of the spouses might have health issues and may need to remain on the other spouse’s health insurance in order to get treatment. Or, the married couple may have other financial reasons for wanting to remain married while living apart. When there are minor children from the marriage, or in situations in which the parties cannot agree about how to split marital assets and debts—yet they want to remain married—they may opt for a legal separation. However, one or both spouses may be wondering whether a legal separation can affect their ability to get divorced later on.
In short, a legal separation does not prevent you from getting divorced at a later date under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). We will explain in more detail.
A variety of motives can lead a married couple to want a separation now and a divorce later on. At the same time, a married couple might not be planning to get divorced later and simply to remain legally separated. However, circumstances can change, and one or both parties ultimately may want to file for divorce.
When it comes to planning for a legal separation now and a divorce later, what are some of the motivations? We already mentioned a major consideration above, which is a situation in which one of the spouses was a primary earner, and the family’s health insurance came from that spouse’s employer. If the non-primary earner spouse got sick and required costly and continuous medical treatment, it could be extremely difficult for that spouse to afford medical care if a divorce occurred. Even if the spouse’s medical issue is not life-threatening but requires ongoing, expensive care, a divorce could be financially devastating to that spouse since most employer family health plans will not continue to cover an ex-spouse. In this type of situation, the couple might decide to get a legal separation and to file for divorce only when the other spouse’s health improves—maybe years later.
At the same time, spouses may plan for a permanent legal separation and ultimately decide years later that they want to get divorced. For example, a married couple might decide that it makes sense financially to remain legally married but to have a legal separation that can last permanently. Then, it may turn out that one of the spouses meets another person and wants to get remarried. Accordingly, that spouse may want to file for divorce.
Regardless of the circumstances under which you and your spouse became legally separated, having a legal separation does not prevent you from getting a divorce. According to the IMDMA, having a legal separation on the record does not prevent a couple from filing for divorce. As long as the party who is filing for divorce has met the requirements under the IMDMA, then an Illinois court can grant a divorce.
To be clear, the requirements for divorce when you have a legal separation are the same, in effect, as if there were no legal separation. The court must find that there are irreconcilable differences between the parties that have caused the irretrievable breakdown of the marriage. There is an irrebuttable presumption that this is the case if the parties have lived separate and apart for six months prior to the divorce filing. For couples with a legal separation, this required is usually a given.
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