When Should Legal Separation Become a Divorce in Illinois?

 Posted on February 11, 2026 in Family Law

Many couples live separately before deciding whether they should divorce. This is often easier than jumping straight into the divorce process. Separating can give you the feeling that there is still time to figure things out. It may also be hard for you to give up the financial benefits of being married. However, long-term separations can create some legal and financial problems that make your situation worse, not better.

If you have been separated from your spouse for months or years in 2026, it may be time to decide if divorce is the better choice. Understanding the risks of extended separation can help you make an informed decision about your future. A DuPage County divorce attorney can help you look at your situation and determine the best path forward.

Separation Versus Divorce in Illinois

While there is a legal process called "legal separation" under law 750 ILCS 5/402, most couples who separate never go through this formal process. Instead, they simply move into different homes and live separately. This is called "informal separation."

With a legal separation, you go to court and get an official order about property division, spousal support, parental responsibilities, parenting time, and child support. You stay legally married, but live apart under court-ordered terms. Divorce, on the other hand, legally ends your marriage.

What Are the Risks of Long-Term Informal Separation?

Living separately without legally ending your marriage creates several issues:

Loss of Control over Marital Assets

When you live apart from your spouse, you may not know what is happening with marital money and property. You might not have information about your spouse's income, how money is being spent, or what debts are accumulating. 

Illinois is an "equitable distribution" state, which means marital assets and debts are fairly divided between spouses in a divorce. If your spouse is spending down assets, you could lose that money forever. If they are running up debt, you could be held responsible for half of it.

Changes in Circumstances Can Affect Your Settlement

If your spouse is the main income earner, the amount of spousal support you receive and the way property gets divided will depend on their current financial situation. If your spouse loses their job, takes a lower-paying job, or retires during a long separation, your potential divorce settlement could be significantly less than it would have been earlier. Waiting too long to divorce can mean missing your chance at more financial support.

Your Spouse May Be Planning for Their Own Advantage

Long separations give your spouse time to prepare for divorce in ways that benefit them and cost you. They might transfer money to secret accounts, give property to friends or family members, or report that assets are less valuable than they really are. 

They could also move to another state where divorce laws are less favorable to you. Many states only require someone to live there for a short time before they can file for divorce in that state. In Illinois, you only need to live in-state for 90 days to get residency for divorce purposes.

You Stay Legally Tied to Your Spouse

During separation, you are still legally married. This means your spouse can make medical decisions for you if you cannot make them yourself. They can also inherit from you if you die without a will and possibly claim rights to property you acquire during the separation. These legal connections may not be what you actually want.

When Does it Make Sense to Stay Separated Instead of Divorcing?

There are some situations where separation might be the right choice. If you and your spouse are working  through counseling, a temporary separation with clear boundaries might help. If you have religious or personal beliefs that make divorce unacceptable to you, legal separation can give you protection while keeping your marriage intact on paper.

What Should You Do if You Have Been Separated for a Long Time?

According to Psychology Today, 80 percent of separations end in divorce. These odds should make you think carefully about whether separation is still the best choice. If you have been living separately from your spouse for months or years, you should speak with a lawyer as soon as possible. A lawyer can help you understand what your specific situation is and what risks there are. They can also help you work out the best plan if you decide on divorce.

Call a Wheaton, IL Divorce Attorney Today

If you are separated from your spouse and need guidance on whether to divorce, Mirabella, Kincaid, Frederick & Mirabella, LLC is ready to help. Our Kane County divorce lawyers serve clients throughout Chicagoland from our offices located in DuPage, Kane, and DeKalb Counties. Contact MKFM today at 630-665-7300 to schedule your initial attorney meeting.