What Is Legal Separation?

Kane County family law attorneyDivorce is a difficult decision to make. Sometimes, a couple may hesitate on pulling the proverbial trigger even though they are well aware that their marriage is in trouble. If you are in this situation, a legal separation may be an idea, as you receive many of the benefits of divorce without giving up all of the benefits of being married just yet. Be advised, however, that most people “separate” colloquially, meaning that they take no steps to protect their assets like bank accounts or titles to vehicles. Legal separation, by comparison, has specific procedures that must be followed.

Changes to the Law

Before changes were enacted in 2016, legal separation was used by many couples who did not have sufficient grounds to divorce, or by couples whose religion either prohibited or frowned upon divorce. With the abolition of fault grounds, fewer people use the procedure because obtaining a divorce on the ground of irreconcilable differences is much easier than it was in the past. However, it is still the choice for many who simply cannot make the decision to divorce for whatever reason.

The basic procedure is very similar to that used for the dissolution of a marriage—commonly known as a divorce. Either spouse may file, though the other spouse must be served with appropriate notice. A court will examine the filing and decide whether a Judgment of Legal Separation is in the couple’s best interest. If so, it is possible for one spouse to obtain temporary maintenance from the other in most cases. However, if circumstances change or the separation is invalidated, maintenance will be either discontinued or decided again at the time.

From Separation to Divorce

Many couples, as one might imagine, do wind up divorcing after trying out legal separation. One important thing to keep in mind if you and your spouse do try a separation is that a Judgment of Legal Separation does not preclude either of you from filing for divorce. If you or your spouse decide to do this, you can essentially “convert” your separation into a divorce filing, as long as it satisfies the requirements of the relevant statutes.

It is important to be aware that if you choose to do so, the standard of review in your divorce for issues like maintenance and child support will almost always be de novo. This means that the court will act as though it is considering the questions between you for the first time, with no reference to your separation even if the same court handles both matters. This also means that you may wind up paying professionals such as attorneys or CPAs twice for the same work.

Seek Skilled Legal Assistance

While it may not as common as it once was, legal separation may be an option for you and your spouse, especially if income tax or healthcare benefits are a worry. To learn more about the process, contact an experienced Kane County family law attorney at MKFM Law today. Call 630-549-0960 for a confidential consultation.



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From our law office in Wheaton, IL the family law and civil litigation law attorneys of Mirabella, Kincaid, Frederick and Mirabella, represent businesses and individual clients throughout the western suburbs of Chicago, Illinois including Wheaton, Naperville, Oak Brook, Glen Ellyn, Carol Stream, Lombard, Downers Grove, Burr Ridge, Lisle, Elmhurst, Oakbrook Terrace, Winfield, Woodridge, Warrenville and throughout DuPage, Kane and Kendall Counties.

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