Types of Separation Before Divorce: Why the Definitions Matter

Getting a divorce is a serious decision, probably one of the most significant decisions a person can make in their lifetime. The choice of whether to remain in a marriage has upon it many pressures, from personal changes and family disruptions to changes in religious and social connections.

For these reasons and more, not everyone considering divorce takes that seminal step right away. Rather, many couples try a form of separation first, depending on their special set of circumstances.

Some want space and time apart to figure out whether they want to remain in the marriage. Others are more certain about their desire to end their spousal relationship, but seek to avoid divorce for the sake of children or religion.

Regardless of their reasons for seeking separation, couples should understand the implications of their decision. If possible, it’s helpful to talk about and even document the terms of the separation. If the couple eventually files for divorce, the conditions of their prior separation period could become relevant to the case.

Living together or apart

Couples often grow apart over time, and you may find yourselves sleeping in different rooms, eating meals apart, and socializing separately. Eventually, one person may move out, but this type of change isn’t always financially realistic.

A married couple can be considered separated whether they’re living in different residences or the same home. If they are effectively living separate lives, the court will consider those conditions in an eventual divorce case.

If a married couple decides to separate, their separation can be categorized in a few different ways depending on how the couple handles the situation.

What is a trial separation?

When one or both members of a married couple feel uncertain about continuing the marriage, the couple may take a trial separation. Instead of proceeding immediately into the divorce process, they use a trial separation to try to gain a better understanding of where the relationship is headed.

A trial separation is a period of time during which a married couple lives separately while they consider the possibility of divorce. The separation may be for any length of time as determined by the people. However, Illinois law requires a couple to be separated for at least six months upon entry of a Judgment for Dissolution of Marriage. 

A couple may enter a trial separation without the court’s supervision, with no requirement to file legal forms. Be careful to seek legal advice to understand the implication of your trial separation on any future litigation. 

Legal separation, as the name states, is a form of marital separation where a Judgment for Legal Separation has been entered by the Court.  One member of the couple files legal paperwork to formalize their separation.  This is known as a Petition for Legal Separation. 

In a legal separation, the members of the couple must live separately. They submit their case to a family court judge, who will formalize the allocation of spousal maintenance, child support, parenting time, and responsibilities.

When a legal separation is filed with the court, the spouses remain legally married. They decide when the legal separation will end, either with a divorce or a continuation of their marriage. Though some couples remain in a state of legal separation for an extended period of time, most make a decision to either remain married or legally divorced.  The property division does not occur in a legal separation because you are still legally married. 

Some couples choose legal separation as a way to formalize a trial separation while deciding whether to remain married. In other cases, the couple no longer wishes to be together but don’t want to divorce for other reasons, including:

  • Their religious beliefs prevent them from divorcing.
  • They share health care or benefits plans (although most plans trigger benefit termination in the event of a formal Legal Separation)
  • They can file joint tax returns.
  • They prefer to remain married for their children’s benefit.

In many cases, a formal legal separation is not the best use of assets as the same can be costly and you still have to go through with the divorce in most cases.

If you’re considering a trial separation, legal separation, or divorce, contact the attorneys at Sterk Family Law Group. We can help you understand your options and guide you through the decision that’s right for you.

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This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.

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