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Tuesday 19, May, 2020

What are the Benefits and Limitations of a Legal Separation?

If you are considering the benefits and limitations of a legal separation instead of a divorce in Chicago, it is important to understand the pros and cons. Like divorce, most legal matters pertaining to legal separation arise under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). For various reasons, some Chicago residents consider legal separation instead of divorce. Sometimes married couples plan to go through a legal separation with an eye toward a divorce in the future, while others plan to live indefinitely under the terms of the legal separation. With a legal separation, a Chicago court can do some of the same things it can do in a divorce case, such as awarding support or maintenance. Yet the court cannot take other steps that it can in a divorce case, such as distributing marital property. These are just two examples. 

We will explain the benefits of a legal separation, and then we will turn to some of the limitations that exist. 

Benefit: Remedy for Reasonable Support and Maintenance

One of the first benefits of a legal separation is that the court can order reasonable support and maintenance for one of the parties. Similar to a divorce situation in which one of the parties seeks maintenance, the court can make a decision about whether maintenance is appropriate and, if so, can determine the appropriate amount of maintenance to be paid. In addition, if the parties have minor children from the marriage, the court can make a determination about how child support will be shared between the parties and how each spouse will contribute to the child support obligation. 

Benefit: Health Insurance Availability

One of the reasons that spouses decide to have a legal separation instead of a divorce is that both spouses can remain on the same health insurance policy. This is particularly important—and often essential—when the family has health insurance through the employer of one of the spouses, and the other spouse has certain health conditions that require good insurance benefits. By remaining married, that spouse should be able to continue benefiting from the health insurance policy. 

Benefit: Court can Allocate Parental Responsibilities 

A divorce is not necessary for the court to allocate parental responsibilities, including both significant decision-making responsibilities and time-sharing. As such, when parents seek a legal separation, they can also petition for an allocation judgment, or they can develop a parenting plan that allocates parental responsibilities. 

Limitation: Court Cannot Distribute Property

The IMDMA makes clear that, unlike in a divorce case, the court cannot distribute marital property according to the standard of equitable distribution. Likewise, the court cannot value property as it can in a divorce case. However, the spouses can enter into a property settlement agreement in which they reach their own decision about how marital property will be divided, and the court can sign off on that agreement.

Limitation: Parties Cannot Get Remarried

A legal separation does not legally end the relationship between the spouses—they are still married. Accordingly, neither of the parties can get remarried unless they first get divorced. 

Contact a Chicago Divorce Attorney

If you have questions about the benefits and limitations of legal separation, and whether it is the right choice for you, a Chicago divorce lawyer can help. Contact the Arami Law Office today.

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