When married couples have trouble in their relationship, they often seek out a variety of options to improve the marriage before settling on divorce. If divorce is not quite right for you or you simply have not made up your mind about whether to commit to it, legal separation could be a better alternative option.
Some couples choose legal separation because a decisive issue has degraded their ability or willingness to live together in the short term. Others legally separate because doing so has the potential to create separate finances, which could impact tax obligations.
Whatever your reason for considering a separation agreement, making the decision is often easier when you understand some of the benefits and limitations of these agreements, as well as some of the basic requirements. If you live in Will County or any of the surrounding areas, a local family lawyer could help you make an informed decision about how a separation agreement may impact you.
For many couples, the primary benefit of legal separation is the fact that it does not actually end their marriage. Instead, it provides a framework for how you and your spouse will live separately. It can also identify the rights and responsibilities of each party to the agreement, potentially including spousal support and child support obligations where applicable.
Usually, judges do not make property determinations when it comes to legal separation. For instance, while a separation agreement might state that you will remain in your marital home during a legal separation, the court will usually not go so far as to remove your spouse from the property’s title if they are already listed on it.
750 Illinois Compiled Statutes 5/402 addresses the requirements of legal separation.
First and foremost, you and your spouse must already be living apart when you file the action for legal separation. This does not always mean that you both must be living in different places; simply not living together in the way a married couple typically would may suffice in some circumstances.
The petition for legal separation may be filed in either county in which you and your spouse currently live, or in the county in which you last resided together.
One of the reasons why people used to get legal separations was related to health care and health insurance. Prior to the Affordable Care Act, if you had a preexisting condition, you could not get new health insurance.
How does a legal separation help with this aspect? If you are on your spouse’s insurance and you have what insurance would deem a ‘preexisting condition,’ you would have a hard time finding new health insurance after a divorce.
To avoid this, some couples would get a legal separation, meaning they were legally separated in their financials and everything, but their spouse could be retained in the insurance. However, some employers no longer allow a legally separated spouse to remain covered under insurance.
The other benefits include financial benefits. Maybe you don’t want to get a divorce, maybe your religion strongly dissuades from going down that path, but you want to separate your marital estate because your spouse is spending out of control, they have an addiction issue, or whatever the reason, with a legal separation you essentially spit the marital estate without going through the full dissolution that divorce brings.
The divorce process can be long. Avoiding it is something some couples strive to do and when weighing the pros and cons of legal separation versus divorce. However there are some strong ‘cons’ when it comes to choosing a separation. For starters, you are still legally married. Until you file divorce papers, you will remain married. Although dating or falling in love again is not something you are thinking about now, being married limits the possibilities in the future.
There’s other drawbacks as well. While we mention divorce can be long and stressful, well so can a legal separation. It still requires paperwork and that’s something that we don’t recommend you take on yourself. If you have children you might risk putting them in uncertain limbo. You might even risk putting yourself in uncertain limbo!
Spouses can choose to live separately without a formal agreement. However, legal separations can have many benefits. While certainly not right for everyone, they can be an effective tool in many circumstances.
Determining your goal in pursuing a legal separation is an important first step, and experienced legal assistance could help you weigh the pros and cons. If you are considering legal separation or divorce and would like to explore more about how it might affect you, call our firm today and start working with our experienced legal team to understand the role a legal separation could play in your marriage.
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