What Is the difference between a divorce and a legal separation?

A divorce means the marriage is legally over. Ex-spouses can marry others. The court can determine the allocation of parental responsibilities, parenting time, and child support. It can also determine spousal support and divide property.

Legal separation is a technical term. It is not the same as separating from one’s spouse by living apart. A legal separation does not legally end a marriage. After a legal separation, spouses are still married. They cannot marry anyone else unless they divorce. A court can determine the allocation of parental responsibilities, parenting time, child support, and maintenance (spousal support). But the court cannot divide property unless you and your spouse agree. You must also ask the court to divide property.

If you don't think you can live with your spouse, you can file for legal separation. Getting a legal separation does not prevent you or your spouse from getting a divorce later.

What Is the difference between a legal separation and not living with my spouse?

A legal separation is different than a physical separation. Legal separation will decide questions about how much child support or maintenance should be paid.

Why would I choose a legal separation instead of a divorce?

Divorce is usually the best option for many people. However, there are situations where getting a legal separation would make the most sense. A few examples of when getting a legal separation might make sense would be:

• You need to stay married to receive certain benefits, such as:
  • Health insurance,
  • Social security, and
  • Pensions,
• You're not sure if you are ready for a divorce, but you need to be apart, or
• Your religion prohibits divorce.

How do I get a legal separation?

To get a legal separation, you must be physically living apart from your spouse when you ask the court for a legal separation. You must then file a Petition for Legal Separation with the circuit clerk in your area. Ask them if they have a form you can fill out. We do not have a form for this on our site.

How long do I have to live in Illinois to get a legal separation?

You have to live in Illinois for more than 90 days.

Can I still get a Legal separation if my spouse does not live in Illinois?

Yes, you can still get a legal separation in this situation.

If your spouse has never lived in Illinois, the court can give you a legal separation. But the court may not be able to decide issues like child support and maintenance.

Can custody be decided with a legal separation?

Yes, but the children must live in Illinois for 6 months before the court can decide custody.

Where should I ask for a legal separation?

The best place to ask for a legal separation is in the county where you lived with your spouse. The next best place to ask is the county where your spouse lives.

If your spouse does not live in Illinois, you can ask for a legal separation in the county where you live.

You can begin a legal separation by filing a petition with the circuit clerk of the appropriate county. For a list of circuit courts, view the Illinois Courts website.