What is the Difference Between a Divorce and a Legal Separation?

Rolling Meadows Divorce Attorney

When a married couple cannot live together peacefully, they should get divorced, right? Not necessarily. Although divorce can be the healthiest choice for a couple who is constantly in conflict, it is not the only choice. For many couples, legal separation provides an alternative to divorce that allows each partner to remove themselves from a toxic household without severing the bond of their marriage. Couples choose legal separation for a variety of reasons, such as a lack of funds to complete the divorce process, religious convictions, and as a "trial divorce" if they are not sure if divorce is truly right for them.

Differences Between Legal Separation and Divorce

The main thing to remember about a legal separation is this: legally separated couples are still married. This means that they cannot remarry without first completing the divorce process. It also means that any baby born to a separated mother is automatically deemed to be the child of her partner, even if this is not actually the case. If you choose to legally separate and your former partner becomes pregnant by a new partner, speak with a family lawyer about your rights and obligations to this baby as well as having yourself relieved of them.

A divorce legally dismantles a marriage. When a couple divorces, they lose all the benefits they had during their marriage, such as the ability to file their taxes jointly, the right to coverage under each other's healthcare insurance, and the ability to hold assets jointly.

Why Would a Couple Choose Separation Over Divorce?

There are a few reasons why a couple might choose legal separation over divorce. One of these is religious conviction. In many religions, divorce is a sin. To avoid sinning, religious couples often choose legal separation.

Couples who are not sure if they want to be divorced or not might also seek legal separation. This can provide an opportunity for a "trial divorce," during which the couple can see what it is like to live apart from each other. This trial can have many different results, such as the couple choosing to file for divorce, the couple getting back together, or the couple opting to remain legally separated, living separate lives but remaining legally married.

Couples might also consider legal separation in order to continue to receive the financial benefits that come with a marriage. These include filing their taxes jointly and accessing each other's employment and government benefits. Sometimes, couples legally separate with the intention of divorcing later in order to become eligible for Social Security divorced spouse benefits. In order to receive these, an individual must have been married to a Social Security recipient for at least 10 years.

Sometimes, legal separation is a strategic way to complete the divorce process more smoothly. Some couples use their legal separation agreements to divide their assets, eliminating their pool of marital assets before they file for divorce. When they do file for divorce, they might have only a few assets to divide or none at all, making the process much easier to complete.

Seeking a Legal Separation in Illinois

Couples can seek legal separation by petitioning to the Clerk of the Circuit Court where one or both parties live. At least one of the partners must be a resident of Illinois. If the petitioning partner can prove that he or she lives physically separate from his or her spouse and that he or she is not the cause of the separation, the couple may create and sign a separation agreement that the judge will then notarize.

If the couple has children, a parenting time and child support agreement must be developed as part of the separation agreement.

Work with an Experienced Rolling Meadows Divorce Lawyer

You might feel like a divorce is the solution to your marriage's problems, and this could very well be the case. But divorce is not always the only option for some couples. After learning more about legal separation, you might find that it is a better choice for you and your partner. After living apart, you might find that divorce is, in fact, the right choice for you or you might find that you and your partner can work out your issues and repair your marriage. You might also find that remaining legally separated indefinitely is the right choice. For answers to your questions and guidance to make difficult decisions about your marriage with confidence, work with experienced Rolling Meadows divorce lawyer Donald J. Cosley. Contact the Law Offices of Donald J. Cosley today to schedule an initial consultation.