Seeking a Legal Separation Instead of (or before) a Divorce

 Posted on November 18, 2014 in Divorce

If you discover that you can no longer live with your spouse, you might assume that divorce is your only option. That is not the case, however. You could opt for a legal separation.

A legal separation works best for two spouses who live in separate residences, do not want a divorce, but do want a court order setting forth each party’s legal rights and obligations. The order might touch upon child custody and visitation rights, child support obligations, property ownership and maintenance payments. The main (obvious) difference between a legal separation and a divorce is that the couple remains married unless either institutes an action for dissolution of marriage.

Illinois law provides a remedy for “reasonable support and maintenance” for any person living separate and apart from a spouse without fault. Generally, the action must be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together as a married couple. (If the respondent cannot be found in Illinois, then the action may be brought in the circuit court of the county in which the petitioner resides.)

The Process

The process for achieving legal separation is similar to the process for dissolving a marriage. The petitioner must first commence the action for legal separation with the clerk of the court. This involves submitting an official summons and paying the filing fee. The petition may or may not be filed at this time. However, once the petition is filed, it must be served upon the respondent within two days.

A petition for legal separation must include:

• Each party’s age, job, address and how long they have been living in Illinois;
• When the marriage occurred and where it was registered;
• Whether there is already a petition for separation (or divorce) pending in another jurisdiction;
• The grounds for legal separation;
• The names, ages, and address of any children produced by the marriage (and whether the wife is pregnant);
• Any arrangements the parties have made regarding child custody, visitation, child support and maintenance; and
• The relief sought.

Regarding the grounds for legal separation, the petitioner only has to state the name of the particular grounds and does not have to allege any specifics. However, the respondent is entitled to demand that the specifics be provided before trial. If the respondent does not, the court may require that such evidence be proffered anyway.

This is how a petition for legal separation begins, but it is only the first few steps. If you are interested in initiating a proceeding for legal separation, contact one of our experienced St.Charles divorce attorneys today. We can walk you through the entire process while ensuring the protection of your rights. Contact us today for a free consultation.