Choosing Between Divorce and Legal Separation

 Posted on July 29, 2022 in Family Law

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: 

• Remarriage - Neither of you can remarry while legally separated, as you are still married to each other. 
• Property division - For the court to divide your marital property, you must both agree. This can get messy if either spouse chooses to not cooperate when it comes to deciding who gets what. 
• Inheritance - Divorcing your spouse automatically voids their right to inherit from you. Legal separation does not. This may work out if you do intend for your separated spouse to receive a share of your estate, for example, if you are amicable and they would use the money to benefit your children. It may be problematic if this is not what you want. 

If you legally separate, you will always have the option of formally divorcing at a later time. It is important to weigh the benefits and drawbacks of each in order to make this important decision. 

Speak With a Kane County Divorce and Separation Attorney

The Law Offices of Douglas B. Warlick & Associates can help you better understand the effects a divorce or legal separation will have. Our skilled Geneva divorce and separation lawyers will help guide you through the decision-making process so you can do what is best for you and your family. Call 630-232-9700 for a free consultation. 

Source: 

https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K402