How to Get a Legal Separation in Illinois: A How-To Guide

Getting a Legal Separation in Illinois

In the context of family law, legal separation is simply the first step one must take before filing for divorce. In Illinois, separation does not mean that a person can’t get married within the legal separation time frame. Also, legal separation does not result in a divorce filing or a divorce action unless a complaint for divorce is filed and case is pursued to finality.
The basic definition of legal separation is a written agreement between two parties (typically, husband and wife) describing how the parties agree to divide their property and debt as a result of the dissolution of their marriage. Legal separation does not equate with annulment of marriage.
In Illinois, there are no issues to be decided by a judge presiding over the legal separation case unless in rare circumstances. For the most part, the parties negotiate a separation agreement with full intent to submit this agreement to the Court for entry as a judgment of legal separation.
If either spouse does not want to obtain a divorce, then instead of filing for divorce, the person can file a petition for legal separation. In Illinois, a legal separation is a Judgment For Dissolution of Marriage With Allowances By Court (735 ILCS 5/101 et seq) . This is verified petition to the court under oath (735 ILCS 5/1041ff). The legal separation petition must state an appropriate ground and why the parties should be legally separated. Both spouses may waive the requirement for a hearing (735 ILCS 5/1044).
The legal separation petition will contain a marital settlement agreement that is signed by both parties. In a legal separation settlement, the parties can hold the state captive to their time tables in negotiating their terms of divorce. One spouse can get the benefit of living apart without getting divorced at the prompt of the other spouse or the Court.
Pursuant to 750 ILCS 5/503, legal separation can affect both parties’ rights to marital property and support. The legal separation can be handled in a similar manner to divorce where the parties have the ability to go back to the judge for services including mediation, parenting arrangements, or any other relief short of divorce.
Legal separation can also allow for tax benefits. For example, the state of your physical separation can allow for you to file head of household status on taxes allowing for greater take home paycheck.

Legal Separation Eligibility

Before you can officially file for legal separation in the state of Illinois, there are some eligibility requirements that you must meet. To begin with, at least one spouse must have been a resident of the state for at least the past six months. If you are not presently living in Illinois or haven’t lived in the state for the past six months, you will not be able to file for legal separation in the state. If you want to file for legal separation in Illinois, you must also file in the right county to ensure that your case will be heard in a timely manner and that you get a fair and just legal separation agreement. In Illinois, the case will need to be filed in the county where you or your spouse reside. Once the case is filed, it will be handed over to the family court by the circuit clerk of that specific county. Keep in mind that in cases of domestic violence, families might also decide to file for legal separation in a surrounding county. There are few exceptions to the residency requirement that would allow you to file for legal separation in another county, so seeking the advice of a separate legal professional may be beneficial in your case. When you go in to file for a legal separation, you can make the request as part of your divorce petition, or it can be filed separately from your divorce petition.

Legal Separation Filing Requirements

To commence your legal separation you need to file a Petition for Legal Separation. You file the Petition with the Circuit Court serving the county where you or your spouse has resided at least 90 days prior to filing. The parties will be required to attend a mandatory case management conference 4-31 days after filing the Petition. Depending on what issues are contested, the case will be scheduled for Pre-Trial and trial within 10 months of the date of the filing of the Petition. Your legal separation and divorce action will proceed similar to a divorce proceeding. You will be appointment a maintenance pendente lite judge (temporary support) to enter any orders for temporary support. You also will be required to exchange financial information with your spouse similar to the financial information required in a divorce action.

Serving the Separation Papers

Serving your spouse with the paperwork you’ve just filed is one of the most delicate parts of the legal separation process. Your spouse may or may not be expecting this. She may see the service as the catalyst for divorce, or she may view it as a blatant attack on the family unit. Whichever way she views it, the service must proceed properly and within the letter of the law.
In Illinois, there are four main ways to serve your spouse with legal separation papers:
• Sheriff’s Service
• Certified Mail
• Special Process Server
• Waiver of Service
For many spouses, the quickest and easiest option is sheriff’s service. In this case, you take your filed documents to your local sheriff’s office, where an officer serves your documents – either at home, at your spouse’s place of business or at another location. You are charged for this service, but your spouse receives the papers in a timely manner.
If you waive service or use certified mail, the other party must sign an affidavit confirming receipt of the papers. If you use a special process server, he or she must file an affidavit with the court. These methods take longer than sheriff’s service, but they also avoid forcing your spouse into an uncomfortable situation. Use these methods only if your spouse poses no threat to you and has no history of not showing up in court.
If you are ready to explore your options for legal separation in Illinois, contact the Peters Law Offices today.

The Court’s Role

Once a legal separation petition is filed, the court reviews the petition to determine if it meets the legal requirements. If your petition is found to be in order, the court will issue a temporary order to preserve the rights of the parties and to make interim decisions about issues such as alimony, the custody of minor children, child support, and the division of debts and property. The temporary order will remain in effect until the final hearing of the legal separation. At that time, the court will give a final ruling regarding the legal separation. It is important to remember that a legal separation does not end the marriage. A legal separation is simply a legal status that allows a couple to live apart while still remaining married. If you and your spouse can agree on the terms of a legal separation, you may avoid a court hearing altogether. If not, a court hearing may be scheduled. To get the best outcome, you should consider hiring a family law attorney to represent your interests and to help you prepare for the hearing. By hiring an attorney, you have someone who can help ensure that you are properly represented and your interests are protected. The lawyer will advise you of the proper procedures, offer insight on what the court may allow, and help you obtain the best possible outcome.

Child Custody and Support

In Illinois, a legal separation case involves determining all the same issues as a divorce, including those relating to child custody and support. The primary determining factor in all cases involving children is the best interests of the child standard. Generally speaking, no single factor is controlling – instead, the totality of circumstances is examined and a decision is reached based on the specifics of the case.
For custody, ILCS 5/601 outlines the following factors among many others that may be considered:
Isolation – Can the other parent retain access to the child when necessary?
Wishes of the Child – What are the preferences of the child?
Interaction with Parents – Have the parents been caring for the child?
Adjustment – Would the child suffer a major impact due to loss of a home, school or community?
Social Health of the Parents – What is the mental health and coping ability of each parent?
Other factors include the frequency of contact between child and parents prior to the divorce or separation, the proximity of residence, school performance, learning problems, drug and/or alcohol use, maturity , other siblings currently in a family unit and religious upbringing.
The issue of child maintenance is handled as a formulaic calculation in Illinois, taking into account all income for both parents. Child support is based on the net income of the parties, whether custodial or not, according to both 750 ILCS 5/505 (biological parents) and the Illinois Parentage Act of 1984 (step-parents, adopted parents, and fathers not legally married to the mother). As of 2017, the Child Support Guidelines in Illinois provide for the following:
The guidelines take into consideration various costs associated with raising children and the time the child spends with each parent. Specifically, if one parent has the child more than 50 percent of the time, the child support obligation is reduced by a formula that accounts for the parental obligations of the excess time.
Because a legal separation proceeding involves all the issues of divorce, including child support calculations, it is important to have child custody matters decided definitively. In Illinois, children 14 and older can state a preference as to with which parent they wish to reside if custody becomes contested.

Spousal Support and Property Division

After a legal separation, there may be obligations between the parties for spousal support (also called "maintenance") and asset/debt division. The court that grants a legal separation has the authority to enter orders of spousal support and divide property (and debts) between the parties. However, there is no automatic entitlement to spousal maintenance. Whether an award is appropriate depends on the facts of the case.
The Spousal Support Statute, 750 ILCS 502, currently provides that in determining whether spousal support is appropriate, the court shall consider the following factors: The statutory framework sets forth some goals of maintenance review as follows: The statute has a system of formulaic spousal support where the current yearly income of both parties is used to determine a presumptive amount of maintenance. That figure is then presumed to be fair (and not subject to contest). The presumption can be overturned in certain cases where the judge makes specific factual findings as to the parties’ situation. In those cases, the judge can reduce or expand the amount as warranted by the facts and circumstances. However, before increasing the amount the judge must find that the presumptive amount is not fair and equitable.
The statute also requires the Court to divide marital assets and liabilities between the parties. The court must consider all relevant factors, including (but not limited to) the following: (a) Each party’s contribution to the acquisition, presenervation, depreciation or appreciation in value, or dissipation of the marital or nonmarital property, taking into account offsets for debts owed by the other spouse; (b) The value of the property assigned to each spouse; (c) The relevant economic circumstances of each spouse when making an equitable distribution of the marital property; (d) How the court will likely rule on the request for maintenance, and how the property division will impact the request for maintenance; (e) The value of the nonmarital property assigned to each party; and (f) The tax consequences to each party as a result of the property assigned to them.

Conversion or Modification

If a party desires to have the court modify the terms of a legal separation after it has been granted, they must file a petition to modify with the court. A motion to vacate is not appropriate. A party may petition the court to convert a legal separation into a divorce as long as the separation period has lasted at least six months. Parties cannot waive the required separation period. If the court grants the petition to convert, all provisions of the separation judgment that were subject to court jurisdiction like custody, support and visitation will be modified if necessary; and the terms of the Intermediate Dissolution of Marriage Order and the Final Judgment for Dissolution of Marriage will control the rights and obligations of the parties.

Getting Legal Help

Legal separation in Illinois is not the same as divorce. In these circumstances, the basic marriage relationship has not ended, and spouses can choose to remain legally married for any number of years, or indefinitely. Because it is essentially a temporary arrangement, it is imperative that couples seek the guidance of an experienced family law attorney. While legal assistance is not required, legal separation should only be pursued with the guidance of an attorney who is knowledgeable about such matters . The outcomes of many issues can have a direct impact on subsequent divorce proceedings. In particular, financial decisions, asset division, and child custody and support are some of the most important issues that must be addressed. An attorney experienced in both divorce and legal separation will know how to protect your interests in either situation.