By Martin Sliwinski, Divorce and Family Law Attorney

What many individuals do not know is that the Illinois Marriage and Dissolution of Marriage Act (the “Act”) provides two routes for married people to seek resolution for child-related and financial issues.

Section 401 of the Act describes a dissolution of marriage (divorce), and Section 402 describes a legal separation. This allows couples to select the route that fits their family and circumstances—a decision best made with the guidance of an attorney who has professional experience in both areas.

To clarify a common source of confusion: The initiation of a legal separation and the initiation of a divorce do not require a physical separation between spouses—in other words, they do not need to live separately to file the case in court. The legal separation referred to in Section 402 can simply mean the couple has ceased to be together as spouses (even if they still live in the same household). However, there is an expectation that the couple will reside separately by the time the process ends and the final judgment for legal separation or divorce is entered.

So, what are the advantages and disadvantages of both options? This depends on your circumstances. Keep reading to learn more.

The Advantages of Divorce

Finality

A divorce completely ends a marriage, permitting each person to proceed with their respective lives without the lingering concern of being married. To be more specific, a divorce resolves any and all pending issues between spouses, with the exception of rare circumstances where the court reserves specific components to be dealt with at a future date. (An example includes the division of college expenses when there’s a young child who is years away from considering college.)

In my experience, there can also be a special calm amongst two people knowing that the process is resolved, and their marriage is over. A divorce comes with a complete change in the legal status of the relationship—there is no uncertainty.

In contrast, a couple that elects for a legal separation remains married. This means they cannot remarry until they get a formal divorce. This raises the question: Why would anyone elect a legal separation versus a divorce? (I cover this more in-depth in the “Legal Status” section below.)

Obtaining a legal separation does not preclude a person from later filing for divorce. In fact, having a signed legal separation agreement already determining matters of child support, maintenance, parenting time and more can facilitate and expedite a divorce down the line.

In contrast to divorce, a legal separation makes it easier to transition toward reconciliation—if a couple believes that is a future option—whereas a divorce is final (although there’s always the option to reconcile before a divorce case closes).

Allocation of Property

Pursuant to Section 402 of the Act, in a legal separation the court can only deal with valuation and allocation of marital property if there is an agreement between the couple. If there is not an agreement, then the allocation of marital property will be reserved until a divorce is later filed—as a judge is not permitted by the law to resolve the disagreement under these circumstances.

In a divorce, the court can, and must, deal with valuation and allocation of marital property even if there is no agreement between the couple. If two people disagree about who receives what property—such as who gets to stay in the marital home—then only in a divorce can the judge rule as to what should happen to the property.

The Advantages of Legal Separation

Religious and Social

There are various social, personal and religious pressures and considerations when discussing divorce. Some people prefer to seek legal separation if their religious values discourage, ban or frown upon divorce. A legal separation provides a couple the ability to remain married while still being entitled to practical remedies such as child support, an allocation of parental responsibilities, an allocation of parenting time and so forth. A legal separation permits the couple to remain apart without formally dissolving the bonds of the marriage.

In cases where children are involved, sometimes parents wish to avoid the stigma and weight behind the status of being divorced and prefer to legally separate. However, at times, this is only a temporary solution as the parents will need to seek a divorce if they ever desire to remarry. On the other hand, if both people believe they do not want to remarry, a legal separation can serve as an effective and long-term alternative.

Legal Status

There are various rationales for wanting to remain legally married even if a couple wishes to separate. The bonds of matrimony are not eliminated under a separation; therefore, the couple is still treated as married for various obligations. For example, not being divorced may provide advantages to health insurance or other benefits awarded to spouses. There may also be tax considerations, although this is best discussed with a tax professional.

Making a Decision that Reflects Your Values

A legal separation may not be as common as a divorce, but that doesn’t mean it is not worth considering—especially if it’s a better fit for your family or future plans. As always, it is critical to hire an attorney who understands what you value most and works with you to prioritize these values.

At Stern Mendez, our team is known for combining compassion, transparency and communication with professionalism and expertise—helping each of our clients reach their desired outcomes and begin their next chapter in life.

Reach out today to learn more about how I can support you. We can meet at our Evanston office in the Davis Center, or at our offices in Chicago, Lake Forest or Oak Brook.

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