Can I Get a Legal Separation Instead of a Divorce?

 Posted on December 16, 2019 in Illinois Family Law

If you are having difficulties in your marriage, you might be considering divorce. At the same time, there are many reasons that you may be thinking about potential alternatives to divorce. To be sure, we work with many Muslim families in DuPage County who want to avoid divorce for religious and cultural reasons. For those families, a legal separation can provide some of the same benefits of divorce without the religious and cultural implications. There are also many financial reasons that legal separation may be preferable to getting divorced. To be clear, a legal separation does not legally end the marriage, but it allows the parties to have some of the benefits that come with a divorce. A divorce, differently, results in a legal end to the marriage.

When you have questions about legal separation versus divorce, you should get in touch with a DuPage County family law attorney who can help with your situation.

What Is a Legal Separation?

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), two people who are married can opt for a legal separation instead of a divorce. Not all states have laws for legal separation, but Illinois is a state that does allow for legal separation. The IMDMA clarifies that “any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they so live apart.” Under the statute (750 ILCS 5/402), the court is also permitted to enter a judgment for legal separation, which can include a property settlement agreement between the parties that the court approves and enters as part of the judgment.

To be clear, with a legal separation, the court can make determinations about spousal maintenance and child support much like in a divorce case. However, in a legal separation, unlike in a divorce, the cannot simply make a decision about how to divide marital property. Instead, the IMDMA makes clear the following:

• The court cannot value or allocate marital property in the absence of a property settlement agreement between the parties;
• The court can only disapprove of a property settlement agreement between the parties if it determines that the agreement is unconscionable; and
• A property settlement agreement that is approved by the court and that becomes part of the judgment for legal separation is final and non-modifiable.

It is also important to note that, although the terms of a judgment for legal separation are binding on the parties, such a judgment does not prevent one of the parties from filing for divorce at a later date. If one of the parties does later file for divorce, the court will make new determinations about maintenance.

Contact a DuPage County Divorce Lawyer

If you have questions about filing a petition for a legal separation, you should work with an experienced DuPage County divorce attorney. At Farooqi & Husain Law Office, our firm regularly assists members of the Muslim community with family law issues including legal separation and divorce. We understand the complexities that Muslims in DuPage County face when it comes to family law matters, and we can speak with you today about your situation. Contact Farooqi & Husain Law Office online or call our office at 630-909-9114.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59