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Legal Separation

This is Dial Law with information on legal separation as it applies to Illinois law. If you are not a resident of Illinois, you are urged to contact your local county bar association for appropriate information.


Legal separation is a formal arrangement set forth in an order or judgment approved by a judge. The order or judgment will set

forth rules under which a husband and wife may legally live apart and will detail the responsibilities and obligations of each. Of course, a husband and wife may choose to live apart without such a formal arrangement.


A legal separation is not a divorce because it does not end the marriage. The judge will ordinarily not decide who will be awarded title to property owned by the husband and wife.


One of the marriage partners may choose to seek a legal separation for several reasons. The judge hearing the case can determine an amount of spousal or child support to be paid by one of the marriage partners to the other; the judge can decide which of the marriage partners will have the sole use of the marital residence; the judge can determine questions of child custody and visitation rights. Both parties may agree on these and other matters, but the judge will review their agreement to be sure that it is fair.


Several requirements must be met before a legal separation can be obtained. For example, the marriage partners must be living separate and apart at the time the court action is initiated, and the marriage partner seeking the judgment of legal separation must establish that he or she is not at fault in causing the separation.


A judgment of legal separation does not allow either partner to marry anyone else until a divorce or dissolution of their marriage has taken place. However, if there is a later divorce hearing, neither marriage partner will have any claim on any property acquired by the other after the date of the judgment of legal separation. If one marriage partner dies while the legal separation is in effect, the other will be entitled to inherit from the deceased spouse as would be the case in any other marriage.


A brief outline of the procedures to follow in obtaining a judgment of legal separation follows. The person seeking the legal separation files a petition with the Clerk of the Circuit Court, stating that the parties live separate and apart and that he or she is without fault in causing separation. A sheriff's deputy will deliver a copy of the petition and serve a summons on the other marriage partner who then may file an answer to the petition and set forth any defenses to the separation. The case will then be heard by a judge who will decide the issues previously discussed and who will review the parties' agreement if they are able to reach one.