The Differences Between A Legal Separation And An Illinois Divorce

by | Jan 7, 2020 | Lawyers

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Couples may find in their relationship that challenges in remaining together may, at times, seem to outweigh the benefits of working through the issues and staying in the marriage. For these couples, divorce offers one way to dissolve the relationship, but it may not always be best.

In addition to divorce, couples may choose legal separation. This is different from just choosing to live separate and apart, although the couple will usually live in two separate homes. In addition to the physical separation, a legal separation uses the court system to develop a clearly defined set of rights and obligations.

The advantage of this is that the couple is not legally divorced during the process. This allows the couple to attempt to reconcile their relationship, which can and does occur in some situations. When this happens, the couple can resume their relationship with the need to remarry and without impact on their retirement plans and investments.

In the event that the couple does not reconcile the relationship and chooses to proceed with a divorce, many of the issues involved in the divorce have already been addressed and decided, which can help to reduce the chances of conflict and disagreement.

What is Decided in a Legal Separation?
Legal separation can include child support and alimony or spousal maintenance. This is based on formulas that include the gross income of the spouses less any recognized deductions. These deductions include tax, mandatory retirement contributions, Social Security payments, and any previous child support and maintenance from other relationships.

The legal separation also includes the division of the property of the couple. This is designed to allow both spouses to divide assets to live separately while providing an equitable division of property. In most situations, the couple negotiates this on their own and through their lawyers, or in mediation. The court approves these settlements, or, if the couple cannot agree, the court makes the determination of the division of property.

When children are involved, a legal separation includes a co-parenting plan, stipulations on parenting time, child custody issues, as well as the payment of child support. This is based on the formulas used by the court, with many couples determining additional contributions when required to provide for special requirements or specific costs involved in the education, religious upbringing, medical expenses or other types of costs that may be part of caring for a child or the children of the relationship.

Divorce After Legal Separation
During a legal separation, the couple is still legally married, although they may agree to live their own lives and to have their own relationships. The divorce process may or may not occur after a legal separation, and it is most commonly linked with one of the spouse’s planning to marry.

When this occurs, the spouse files a motion with the court for the divorce. It does not result in the need to negotiate or change the legal separation agreement, and all issues, including child support, child custody, property and asset divisions, and maintenance payments remain the same.

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