Defining Legal Separation
Legal separation occurs when a legally-married couple decides to live apart without terminating the union. It’s an alternative to filing for divorce.
The overall process for legal separation includes filing for a petition for legal separation that’s similar to a divorce petition. The details may vary by state, but the spouses will most likely need to inform creditors, such as banks, credit card companies, insurance providers and mortgage companies. Each spouse must remain responsible for his or her debts for the duration of the separation.
During the separation, the couple could remain living in the same home or obtain a separate residence. They can negotiate a property settlement agreement and potentially fill out an automatic restraints order (about which we’ll discuss more in a moment . ) Finally, it would help if you have a child custody schedule before filing for separation. A parenting plan or child visitation plan often accompanies most legal separation agreements.
If spouses do not decide to divorce within two years from the date of legal separation, courts often terminate spousal support. A judge has the ability to lengthen the duration of the separation, if substantial evidence exists to do so. Many people looking to file for separation fear making a permanent choice to end the marriage. However, a legal separation can create some certainty in uncertain situations. To reduce risks, spouses seeking a separation would benefit from obtaining a lawyer’s legal advice.
Benefits of Legal Separation
In many instances, legal separation provides the same relief as divorce. However, there are notable exceptions to keep in mind. One advantage to legal separation is that it protects the financial status of the spouses. The parties are not "divorced" in the eyes of the law, and all of their accounts remain intact. They should keep in mind that a court considers the income and assets of the spouses during the period of separation to determine an appropriate level of spousal support.
Another example is where the parties’ religious beliefs preclude them from the option of obtaining a divorce. They may, however, file for legal separation. This also applies to legal requirements in certain jurisdictions. For example, in Michigan, spouses must be separated for at least 180 days before filing for a divorce. Lawful purposes that justify legal separation are more likely to be recognized than periods in which the couple has merely physically separated.
A minor benefit of legal separation is that the parties can obtain court approval for the transfer of property or funds to meet the needs of the dependent spouse. In cases involving Social Security disability benefits where earnings are not significant, legal separation allows the other spouse to maintain the disabled spouse’s medical insurance benefits and the couple can determine whether further legal action is necessary. The waiting period also provides separated spouses time to work on reconciliation.
A legal separation has no impact on taxes, though its advantages extend to income tax in specific ways. Tax credits and deductions associated with dependents are not contingent on legal separation status, though you have to carefully follow the regulations on how to legally claim these benefits. In a legal separation, the parties maintain the same income tax status as if they were still married. In other words, they file a joint return for tax purposes. This could be beneficial to a dependent spouse who can combine income with the higher-earning spouse for a tax break.
Medical benefits and retirement benefits are two other areas of advantage. The working spouse is entitled to keep the family on his or her health benefits plan. Through approval by a QDRO (qualified domestic relations order), the working spouse may also be able to convert a 401(k) account into a retirement account held by the other spouse.
Drawbacks of Legal Separation
One of the biggest disadvantages of legal separation is that the spouses usually haven’t given up hope for resolution. Most legal separations are an attempt to be fair to both parents and to keep the family together. Often, a spouse will say, "It’s just too hard to imagine divorce right now." Or, "We’re afraid it will hurt the kids if we talk about divorce right now." Perhaps one spouse is still hanging on, hoping for reconciliation. Setting aside the divorce issue helps the couple stay focused on their family and avoids the fear of divorce at the beginning.
The problem is that sometimes the separation will last a very long time. In most cases, the couple will have physical separation, but not the emotional separation that usually goes with divorce. Even after ten years, many such couples will say, "We never really divorced." That leaves the couple in a strange limbo of married and not married. They will share financial information about taxes, retirement, health care and possibly school costs, but the couple should not be sharing day-to-day resources.
As long as they live separately, both parents want a relationship with the children, and both are willing to pay expenses. They share those expenses, and we often see 50/50, joint custody but without divorce. The point that separates legal separation from divorce is that the couple can only make major decisions by agreement. They will probably never agree on the decisions that start the ball rolling down the path toward divorce. But the decision to divorce (or not) is so important once the decision to separate has happened, the couple rarely agree.
Spouses learn that they can live apart. We say they live "real lives," that are independent of each other. When divorce begins, we often see many couples still living under financial and emotional obligations to each other. They are living in a quagmire where nothing really changes. They remain married, but their decisions as a team are all but gone. It is certainly most confusing for the children.
Children truly deserve the stability and the predictability of knowing their parents are making decisions as a team. Studies constantly show that children suffer when parents are separated but still in the home. Children also suffer when they are forced to live with one parent as primary custodial, and the other as a non custodian who has little or nothing to say in the decisions affecting their lives. When custody arrangements are made at a time when the couple is living apart, often the couples have more practical questions than theoretical questions. They have first-hand experience about what goes with spending time with the child, and no one has to work out what the child really needs or deserves.
Legal Separation Vs. Divorce-How to Decide
Legal separation and divorce are both common approaches to ending a marriage. However, they have fundamental differences that must be understood before determining which path to pursue. In Illinois, there is only one form of legal separation, known as legal separation, but there are two forms of divorce, dissolution of marriage and declaration of invalidity of marriage.
Legal separation
In the legal separation process, a spouse can obtain child support, spousal maintenance, health insurance coverage and divide property owned before and during the marriage. However, a legal separation does not terminate your marriage. In Illinois, a legal separation is available to a person who has been living separate and apart from their spouse without sexual cohabitation for at least six months when a judgment of legal separation is entered.
There are no legal requirements for a legal separation other than the requirement of living separate and apart for at least six months.
Dissolution of marriage
A dissolution of marriage is what most people think of as divorce. The primary objective of filing for divorce is to ultimately end the marriage. A divorce is available to married spouses pursuant to Illinois Divorce Act 750 ILCS 5/101 et seq., after one spouse files a petition for dissolution of marriage. It is important to be aware that the timing for filing a petition for dissolution of marriage depends on a variety of factors including your residency. The general residency requirement is that at least one spouse must have resided in Illinois for at least 90 days before filing for a divorce.
There are two forms of divorce petition: "contested" and "uncontested." A contested dissolution of marriage case is generally one in which the parties are unable to reach agreement on marital assets and debts , custody matters, child support, maintenance and other issues regarding the termination of their marriage. Because of the particular facts of your case, this type of proceeding may be very complex. An uncontested dissolution of marriage is one in which the parties are able to reach agreement as to the majority (if not all) of the issues in their case without the need for court intervention.
Declaration of invalidity of marriage
A declaration of invalidity of marriage is the declaration that a supposed marriage was not valid in the first instance. Similar to divorces, declaration of invalidity of marriage is governed by the Illinois Marriage Act 750 ILCS 5/1 et seq. Also referred to as an annulment, a declaration of invalidity of marriage is the termination of an invalid marriage recorded by the State of Illinois.
In Illinois, the parties must have lived separate and apart without sexual cohabitation for a period of six months. The other grounds include:
The first question to ask yourself before determining whether legal separation or divorce is right for you, is whether you wish to bear the title of "single" or still remain as "married" in name only. Your answer to this question may be a critical component in your decision-making as to whether you wish to become legally separated or proceed with filing for divorce.
Getting a Legal Separation-Detailed Process
The process for obtaining a legal separation is somewhat similar to that of a divorce: you file a petition with the court, serve that petition on your spouse and then negotiate the terms of your separation to the best of your ability. If negotiation fails, you may have to go to a court hearing or trial in order to have a decision made.
In order to initiate the process for legal separation, either you or your spouse will file a petition with the court and serve your spouse with the petition and summons. This is a form that formally registers your case with the court and tells your spouse to respond within a certain period of time. After the petition is filed, there are several forms related to a legal separation that are filed and served to the other party: If children are involved, additional documents must be filed, including the following: In some cases, the terms for legal separation can be negotiated with your spouse by your lawyers without going to court. In other times, mediation through a third-party neutral is needed to reach an agreement. In some situations, the couple cannot reach an agreement even with the guidance of a mediator and a judge will have to issue a decision on the matter after a court hearing or trial.
Things to Consider before Choosing Legal Separation
Before deciding on what is best for you and your family, you need to understand the differences between legal separation and divorce and decide what is right for you. You need to consider your long-term goals, your debt obligations, your future support, your future parenting (if you have children), whether there is a possibility of reconciliation, your family values , and whether you want to date while separated. A legal separation may work for some people for religious or personal reasons. If you do not believe in divorce or if the divorce process is too emotionally difficult, a legal separation may be the right solution for you. A legal separation may also be a good option if your spouse does not consent to the divorce, but you must legally separate before you can obtain a divorce.