A Legal Separation Could Protect You During a Drawn Out Divorce
When it comes to the idea of a “separated” couple, there are two generally accepted definitions. The first is the one which you are probably most familiar: a couple who is unsure whether they should remain married or who has decided to pursue a divorce may describe themselves as separated because they are not currently living together.
The second definition is more formal and much less common, and it refers to a couple who has gone through the formalities of obtaining a judgment of legal separation. Under Illinois law, neither type of separation is a prerequisite for divorce, but a legal separation could be beneficial in certain situations.
An Important Date
During a divorce, it is possible to obtain temporary orders regarding child support, spousal maintenance, and parental responsibilities, but there is an important consideration that is sometimes not determined until much later in the proceedings. If the spouses cannot agree on the division of marital property, the court has the discretion to choose the date to be used for the purposes of identification and valuation of the property. The court may select the date of the divorce trial or any other date agreed to by the parties or chosen by the court.
Under Illinois law, marital property refers to any assets or debts acquired by either spouse during the marriage, with limited exceptions. The marriage is not officially terminated until the divorce decree is finalized which means that any assets and debts acquired during the divorce will likely be considered marital property as well. Once the court sets a date of valuation, it will typically close the marital estate as of that date—which could be many months after the original petition for divorce was filed.
The Benefit of Legal Separation
While a legal separation does not legally end the marriage between two people, it does officially close the marital estate. This means that any assets and debts acquired after the date of legal separation will be non-marital or separate property. It is important to remember that the court will not decide on marital property division during a legal separation, but the spouses could agree to a marital property settlement that they have negotiated themselves.
An Illustrative Example
So, why does closing the marital estate matter? The answer is that it might matter in your case or might not. Consider this example, however. Assume that you and your spouse have not been able to reach a property settlement based on your current situation. It has been over a year since you filed your petition for divorce, and you are scheduled for trial in a few weeks. Tomorrow morning, you get a phone call about an available position in your field—a position that comes with a substantial sign-on bonus. If you were to receive that bonus prior to your trial date, the money would be considered marital property, subject to division.
Now take the same scenario, and assume that you obtained a legal separation within the first few months of filing your petition. You could still be pursuing your divorce, but your spouse would have no claim to any part of your bonus.
Call Us for Help
This is just one way in which a legal separation could be helpful prior to a divorce. To learn about others or to get help in seeking a legal separation, contact an experienced Geneva family law attorney. Call 630-232-9700 for a confidential consultation today.
Sources:
http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt.+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8400000
https://www.forbes.com/sites/jefflanders/2011/09/28/why-divorcing-women-need-to-pay-careful-attention-to-the-date-of-separation/
