A Beginner’s Guide to Filing for Legal Separation in Illinois
Understanding What Legal Separation Means in Illinois
In Illinois, a legal separation does not formally mean that a couple is separated under the law, but it is a way for individuals to part while giving time for the opportunity to reconcile. It can be particularly useful for any party that wishes to preserve the marital estate without definitively ending the marriage relationship.
In Illinois, there is no formal definition of legal separation, nor is there a formal process. A legal separation is much like a divorce in that it involves the same types of issues: divvying up property, alimony and custody issues. However, it is not a permanent solution, so many individuals prefer it as an option , particularly those of the Catholic or other denominations that do not allow for divorce. The closest process to legal separation in Illinois is something called a "Judgement for Dissolution of Marriage from Bed and Board." Under Illinois law, the Illinois Marriage and Dissolution of Marriage Act gives the parties the ability to pursue a Dissolution of Marriage using the same processes as establishing a divorce, but allow the parties to live separately and apart. One party must petition to the court for the Judgement for Dissolution of Marriage from Bed and Board, and a marital arrangement can be established and enforced by the court. In this case, the parties are married on paper only, but may have separate assets and debts. The grounds that are recognized in Illinois for legal separation are irreconcilable differences and incompatibility in material respects.
Requirements for Filing for Legal Separation
Not every couple is eligible to request for legal separation from each other. Couples must meet a criteria before they can apply to get legally separated. If they do not, then they must try to meet those conditions first until they are ready to start the process of separating interests in the marriage. The requirements for couples to file papers for separation include:
- At least one spouse must reside in Illinois when filing the request for separation.
- The husband and wife must be legally separated or mutually consent to living apart.
- The couple must be either permanently or indefinitely separated prior to filing.
If these three requirements are met, then the couple may submit the separation papers to the court and begin the process. Keep in mind that the court may mandate an attempt at reconciliation before it will grant the petition for separation. The goal of the court here is to definitively know if the couple will be able to work out their issues and if they don’t, they can proceed with the separation.
How to File for Legal Separation in Steps
Filing for legal separation in Illinois involves several steps, forms, and possible court proceedings. Understanding this process ahead of time can be helpful.
The first step in filing for legal separation in Illinois is to write a petition with the help of a lawyer. Your attorney will use all the necessary forms, which are relatively basic and straightforward. If you are acting without an attorney, you can find the necessary forms on the Illinois State Supreme Court website.
Once submitted, you and your lawyer get a date when you must be present in court. You’ll need to bring your attorney and proof that you have been a resident of Illinois for at least 90 days, whether it be a power bill, a driver’s license, or another form of identification. You also need to document that you have lived separately from your spouse for at least six months. You do need a witness to any of these documents in general. Your lawyer arranges the witness.
At court, the judge will ask a few rather standard questions about the marriage and any involvement you have had with your spouse. The judge will also ensure you are both aware of the separation proceedings. After the hearing, you’ll receive a date when you’ll go back to court to settle the divorce permanently.
The next hearing involves providing a more general notice of intent to divorce so that all statutes of limitations have run out when the divorce is finalized in six months. You must have the proper papers served to your partner at least 14 days before the hearing so they have an opportunity to reply. This guarantees fairness and that statutes are not violated.
Documents Needed to File for Legal Separation
Before you file for legal separation, it’s important to understand the documents that you will need to provide to the court. The required documents include:
1. A Petition for Legal Separation
The Petition for Legal Separation is a legal document that outlines the reasons for legal separation and what you are requesting from the court. Typically, the petition shows the court:
2. The Certificate of Disclosure
The Certificate of Disclosure is a form that provides financial information regarding you and your spouse’s income and assets. You must provide a certificate to the court, disclosing your income and a detailed itemization of your assets. Leaving out bank accounts, properties, or investments will come back to haunt you.
If you attempt to conceal assets, there is a good chance that you will not get the proper support and division of assets you deserve. It’s simply not worth the risk.
3. A Motion for Care of Minor Children
When you file for legal separation, you’ll need to provide a Motion for Care of Minor Children if you have minor children. The Motion must state what you are asking for in terms of custody, visitation, and child support. It will usually include a request for temporary orders, child support amount, and a visitation schedule.
4. A Summons
A Summons is a document that informs your spouse that you are filing for a divorce. If you file online, you will receive a proof of service document.
5. A Financial Responsibility Affidavit
You also need to file an Affidavit of Financial Responsibility. This document will require details about yourself, such as your place of residence, employer, Social Security number, and whether you receive any social security benefits.
There are also a number of other documents that you may need to submit to the court, such as a Notice of Motion, an Entry of Appearance, and an Affidavit of Military Status. Your attorney should be able to walk you through the process and provide you with the information you need about each.
Legal Considerations and Potential Issues
In addition to the emotional and practical challenges that a legal separation can present, there are also a number of legal considerations that must be taken into account. One of the major areas of focus is child custody. In Illinois, custody arrangements can be legally binding and often require the parents to follow very specific guidelines. Drawing up an arrangement early on that carefully lays out each parent’s obligations and schedule can help avoid confusion down the road.
Another difficult area to navigate in a legal separation is often asset division. By the time a legal separation is in the works, the assets of the family unit may already be somewhat complicated and entwined. Even with support, untangling everything from property titles to bank accounts takes careful planning. An attorney can help you create a plan ahead of time so that the division process is smoother. If you are negotiating these circumstances on your own , they can go awry quickly.
Spousal support is another area that can become messy. Again, a premature negotiation can leave both parties in problematic situations. The court may mandate an amount of support for either party or even decide that neither spouse should be required to provide support. Working with a family law attorney is the best way to determine how to approach support negotiations and what your rights are moving forward.
The best way to handle a legal separation is to plan for all aspects of the process ahead of time. It is easy to underestimate some of the complexities involved, especially if you are handling the situation on your own without the help of an attorney. When it comes to legal separation in Illinois, working with professionals who have been through this process before can help you through the process and keep you protected.
The Impact of a Legal Separation on Your Family
Divorce brings upheaval, both emotionally and practically. So too does legal separation. The experience of separation can carry similar impacts on the personal dynamics for a couple who have decided to live apart, even for a period of time (and sometimes indefinitely). Those impacts extend beyond the couple to their children, extended family members, co-workers, and others in their lives.
One of the most difficult aspects of separation for the couple is the feeling that they are now at odds rather than on the same team. That difficulty is compounded where the couple have children. As parents, they will still be part of the family on some level for many years to come. Even if they have both decided that the separation is necessary, they may disagree on how to manage being separate while serving as parents. For example, even if both parents agree on having a couple of blocks away from their family home, disagreements may arise over the extent to which the other parent can bring new people around the child (especially if the new person spends the night or moves into their home).
Differences over new relationships can be especially problematic when a new romantic partner has children of their own. For example, can the former spouse bring their new partner/step-parent on family trips that include the children? The introduction of new people into the family unit can create discomfort and feelings of jealousy for former spouses. Ensuing conflicts can often lead to court battles. These conflicts, along with open-ended rules about new people and other parenting issues, should be avoided through a thoughtful parenting plan. The clearer the rules, the less stress and confusion there will be about how to move forward and the more likely the parties will be able to amicably adhere to the agreement therein.
Involving a third-party to mediate or facilitate inklings of change even at an early stage before the formal separation may also help. These early look writers from intense emotions (and even hostility) may allow for valuable opportunities for communication to create reasonable and workable plans that structure the new family as well as the separation.
Beyond the couple, separation will have ripple effects on relationships with family members, including the extended family of uncles, aunts, cousins, and others. Those relationships will change, along with the family dynamics. For example, a former mother-in-law may fall out of favor with her former son- or daughter-in-law. How much time a child or former spouse spends with grandparents may also become a source of tension. While a court can help facilitate a good relationship through its ruling on parenting time, the degree to which the parent or former parent controls the relationship with third-parties will remain largely unfettered. It’s important to plan for these issues in a parenting plan, or to incorporate provisions in an existing plan as they arise.
Working with a Family Law Attorney
Although it is possible to file for legal separation in Illinois without assistance from a lawyer, seeking the counsel of a family law attorney can prove beneficial for both you and your spouse. A family law attorney is knowledgeable in family law issues such as child custody, spousal maintenance and property distribution. As family law is governed by statutory law, he or she has expertise in this area of practice and is familiar with the laws in the state of Illinois. Your attorney can offer recommendations with respect to your unique situation and provide you with insight regarding your options and potential outcomes . Navigating the legal process can be complex and stressful. Working directly with a family law attorney can relieve stress and help to ensure that you avoid mistakes in the separation process that could be detrimental for you and your children. Furthermore, your attorney can help to prevent unfair results, such as one spouse receiving a greater percentage of the marital estate. Having the guidance of an attorney provides you with peace of mind throughout the process of legal separation.