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| Home > Divorce Q&A's: (sect-Starting a Divorce) > Legal Separation | |||||
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Separating and Legal Separation in IllinoisThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2009
Q:My wife and I have been talking about separation. What is your view? Is separation likely to result in a divorce?A:The line that I have used in discussing separation is that people generally do not work on their marriage if they are separated. Instead, I suggest that people work best on their marriage by going to a marriage counselor, living together and trying to work out their problems. On the other hand, there are times when separation may be recommended. The most important of these is when a spouse has been physically abusive to the other spouse. It is generally recommended for such couples that they separate and that one party attends anger control counseling prior to the couple trying to again work out their problems through living together.
Q:What is “legal separation?” Is this different from just separating?A:Yes. A couple has an absolute right to separate. The court system generally has nothing to say about such separations. Legal separation, on the other hand, is a technical term given to proceedings which are somewhat similar to divorce, but different.
Q:What is the difference between proceedings for legal separation and divorce proceedings?A:The biggest difference is that the court cannot distribute property in legal separation proceedings.
Q:What is your view as to legal separation? Is this a good thing if I am not positive I want a divorce?A:Once again, I recommend to clients that they seek marital counseling and not separate if they want to work on their marriage. Generally, I have found that legal separation proceedings will lead to a divorce. Moreover, the attorney's fees incurred if a couple first goes through legal separation proceedings and then through divorce proceedings is substantially increased. For this reason, few couples go through legal separation proceedings. Divorce is much more common.
Q:After the divorce is filed, is one of the parties required to leave the marital residence?A:No. I have found that most divorcing couples do separate at some period during the divorce process. However, there are only two vehicles to forcibly evict a party from the house: a petition for exclusive possession of the residence brought within the divorce case or domestic violence proceedings (an order of protection).
Q:My wife and I have have children and my spouse that I move out of the house temporarily so that we can have a "trial separation." Are there dangers to such a separation?A:Yes. First, if there is a potential issue regarding custody, generally the parent who moves out of the marital residence without the children will lose "leverage" in any potential custody proceedings. Therefore, the advice of most divorce lawyers is that if there is a potential custody issue the parent should be reluctant to move out of the marital residence. On the other hand, in many cases it is known that there will not be an issue as to custody so this would then not be as significant of a concern. In many cases, the parents know whether there will be an agreement as to parenting issues so that the real question is the affordability of dual residences.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law
Firm, P.C. Gitlin Law Firm, P.C. Updated: January 2, 2009
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