Legal separation is an alternative to divorce that allows spouses to formally separate without terminating the marriage entirely. Spouses who are granted a legal separation are still married, but may have certain orders or agreements in place that are reminiscent of a divorce decree. For example, separated spouses may be entitled to “reasonable support and maintenance” during the separation. Legally separating has certain advantages over divorce. It is easier to undo the effects of a legal separation. Spouses who divorce would be required to remarry should they reconcile and wish to begin living as a married couple again, while those who have legally separated may have significantly easier options should they restart their relationship. If you are considering divorce or legal separation, work with an experienced Illinois lawyer who can guide you through the process. 

Could I Get Support From My Spouse After Separating?

It is possible for some spouses who are legally separating or have legally separated to receive financial support from their spouse. The Illinois statute that provides for legal separation authorizes separated spouses to pursue support payments so a spouse who has not worked for pay during the marriage can pursue separation more easily. The manner in which support payments are addressed and decided in legal separation is similar to the method by which this issue would be settled in divorce. 

Is Property Divided During Separation Proceedings?

When spouses who have been living together separate into two households, there may be disagreements regarding who should maintain possession of various marital property. While spouses who are pursuing a divorce may ask the court to decide on an allocation of marital property, spouses who are pursuing legal separation must reach an agreement as to the division of marital property if such a division is to be included in the order. 

Illinois offers two options for spouses who want to split up - divorce or legal separation. Legal separation allows the court to step in and help determine matters like allocation of parenting time and parental responsibilities, or even spousal support. Property division in legal separation can only be handled by a court if both spouses agree to the terms of property division. However, a legal separation does not end the marriage. Spouses who legally separate are still spouses. Divorce is final and allows the court to determine all issues related to the termination of your marriage. There are a number of reasons that spouses may want to separate without fully divorcing. A family law attorney can help you decide which option is better for you, your spouse, and your children. 

Reasons Spouses May Legally Separate Without Divorcing

Some reasons that you and your spouse may wish to get a legal separation instead of a divorce include: 

• Benefits - Many spouses need to remain married in order to keep benefits like health insurance, pension funds, or social security. Divorcing may mean that one or both of you will lose out on important benefits. Legal separation allows you to live separately without terminating the benefits you rely on. 
• Possibility of reconciliation - A legal separation is much easier to undo than a divorce. If you get divorced, you would have to remarry. Remarrying an ex-spouse after divorce can be complicated, as each of you now has significant separate property that you were awarded in the divorce. If you legally separate, it is easier to undo the separation, move back in together, and go back to living as a married couple. 
• Taxes - Some spouses wish to avoid getting divorced so they can continue filing taxes jointly. 
• Religion - If your religious beliefs or culture does not allow for divorce in normal circumstances, a legal separation may be a good option. It allows you to live independently from your spouse and divide parenting duties without getting divorced. 

Disadvantages of Legal Separation Over Divorce

There are of course, a few downsides of legal separation, such as: 

Throughout history, the typical family dynamic included a husband, wife, and children living in a home together. However, in 2022, blended families have become normalized and accepted into mainstream culture. It used to be standard for a man and woman to marry, have children, and live together. Today, many families live together and share finances, property, and children without being legally married. There are legal protections for unmarried couples living together to ensure their rights are protected. One way partners can protect these rights is through a cohabitation agreement.

Who Can Obtain a Cohabitation Agreement?

Cohabitation agreements are legally recognized documents that outline the rights of unmarried couples living together. These couples include unmarried partners who are in a long-term, intimate relationship. In many states, these relationships are known as common-law marriages. The National Conference of State Legislatures defines common law marriage as a marriage acknowledged by the state without the partners obtaining a legitimate marriage license. Common-law marriages are only accepted in a handful of American states, and Illinois is not one of the states that approve common-law marriages. This is why it is essential for unmarried, long-term partners who share property and finances to create a cohabitation agreement to protect their assets. 

Whether you have heard of a cohabitation agreement or not, you might need one if you are living with but not married to your romantic partner. It is becoming increasingly common for couples to live together in long-term, committed relationships without choosing to legally marry. The reasons couples may elect not to marry are numerous and varied. Some simply do not see the need for a “piece of paper” to show commitment. Others prefer to avoid legal entanglement. 

However, in the event that such a relationship ends, there is likely to be a legal entanglement of some type anyway, often in the form of joint property or even children in common. A cohabitation agreement can help you address how certain issues would be settled should you split, or should one of you pass away. These agreements may be the best way for unmarried couples to legally protect themselves. 

What Are the Benefits of a Cohabitation Agreement?

When a married couple splits, they must go through formal divorce proceedings. During a divorce, a court oversees the equitable distribution of marital property and addresses any child custody concerns. No such process exists when unmarried couples split. A cohabitation agreement can help with: 

There are millions of married couples in Illinois and throughout the United States. However, not all marriages last. Approximately 40 to 50 percent of all U.S. marriages end in divorce. Many people may equate a divorce with an annulment or even a legal separation, but they are not the same thing. In a divorce, a couple will seek to dissolve a valid marriage. In an annulment, the marriage is ruled as invalid, as if it never happened. Some people assume that an annulment is easier to obtain than a divorce, but that is not always true. Annulments can have stricter requirements and time limits when compared to a divorce. If you are considering ending your marriage, it is essential that you hire professional legal counsel to fully understand your legal options.    

Declaration of Invalidity 

It is important to note that an annulment is not the same thing as a divorce or legal separation. When married couples legally separate, they live apart but are still technically married in the eyes of the law. An annulment is a way for two people who are in a fraudulent or invalid marriage to legally leave the marriage by essentially voiding it. A marriage can be deemed invalid for various reasons, including if one party was unable to consent to the union due to:

• Mental illness
• Substance abuse
• Coercion
• Incest
• Bigamy
• Inability to consummate the marriage
• Being underage at the time of the wedding

A marriage can only be annulled if the court issues a Declaration of Invalidity. An invalid marriage represents an illegal relationship and is therefore not recognized by the state.