two-peopleA common question when parties begin considering moving forward with legal proceedings regarding their marriage is what the difference is between a divorce and a legal separation.

The Illinois Marriage and Dissolution of Marriage Act provides that a married couple in Illinois may dissolve their marriage or enter into a legal separation.

In order to get a divorce, the parties must establish that either, or both, have been residents of the state for at least 90 days and that there have been irreconcilable differences leading to a breakdown of the marriage. In a divorce, the marital bonds are dissolved and the marital estate, including any assets and liabilities, are divided equitably (not necessarily equally) between the spouses. This division can be decided and agreed to by the parties or, in the absence of such agreement, by the judge. In order for the judge to make such a division, the court must have jurisdiction over both parties. That means, both parties must either reside in Illinois or consent to the jurisdiction. However, if one spouse resides outside of the state and refuses to consent, the Illinois resident may still seek a dissolution of their marriage; however, the marital estate typically cannot be divided in such a situation.

In a legal separation, a judge cannot order a division of the marital estate; however, the parties must agree to a division of property. The only role the court has in this situation is in approving, or disapproving of an agreement if it finds the agreement to be unconscionable, or in ordering temporary support. A spouse is entitled to seek reasonable support and maintenance from the other party in either a dissolution of marriage proceeding or a legal separation.

So if you can obtain support and are able to distribute your property in either situation, why agree to a legal separation rather than get a divorce?

Some parties choose to stay married for medical insurance purposes. Once you are divorced, the parties cannot remain on the other party’s insurance policy. This could be an important factor in deciding how to proceed for many people, including those with severe health issues and limited access to desirable insurance coverage.

Some parties who are separated may still be trying to work on their marriage but want to receive the tax benefits that come along with paying the other party maintenance as those payments are deductible from gross income. Also, those who may be attempting to mend their relationship may wish to stop the accrual of marital property. Under the Illinois Marriage and Dissolution of Marriage Act, all property obtained during the marriage is presumed to be marital subject to an equitable division. In a legal separation, both of these objectives may be achieved.

Another important consideration in deciding between divorce and legal separation for some people may be their religious faith and beliefs. A legal separation allows two people to distribute their property, allocate their debts, and live separate lives yet not get divorced.

Those considering a legal separation should be aware that even after a legal separation agreement is entered, either party can still seek a divorce in the future.

Parties must consider their situations and how they want to continue to live their lives.

by Brandy Wisher