Marital troubles are among life’s most stressful events, and sometimes the disagreements become too large to manage. When that happens, people may contemplate living apart or formally dissolving the marriage. It’s not unusual to wonder what the differences between legal separation and divorce are, and what the pros and cons of each are.
The most noticeable difference between legal separation and divorce is that separation isn’t permanent–if the spouses decided to get back together, they simply do that. A divorce is a legal process that finalizes the end of the marriage. If the spouses change their minds after the divorce is final, they will have to remarry.
What Is a Legal Separation?
A legal separation is a more formalized version of a separation that occurs when one spouse moves out of the formerly shared living space. A legal separation is filed with the court and settles questions of child support or spousal maintenance.
To get a legal separation in Illinois, the person applying for one must have lived in Illinois for more than 90 days. The spouse of that person does not have to live in Illinois, only the person applying for the separation. If child custody is part of the separation, the children have to live in Illinois for at least six months before the court determines custody.
Before filing for legal separation, the spouses must be physically living in separate residences. Once that’s happened, the person filing for the separation must file a Petition for Legal Separation with the Circuit Clerk in their area.
Once the separation has been granted by the court, it’s important to remember that the marriage itself is still intact–the spouses are not free to marry anyone else unless a divorce is finalized. The terms of the separation are legally binding and must be maintained by both sides.
What Are the Benefits of a Legal Separation Over a Divorce?
There are a few reasons to choose a legal separation over a divorce. One reason is if one or both spouses aren’t sure they really want to divorce. The legal separation provides support for one or both spouses and determines child custody and support as well without dissolving the marriage. In addition, if the couple eventually does decide to divorce, they’ll likely have resolved several of those custody and support issues in the separation process, which–if there are no changes or disputes–can speed up the divorce process somewhat.
In some cases, someone’s religion prohibits marriage, but the spouses no longer feel they can live together. A legal separation provides some of the legal protections a divorce would provide, as noted above, while allowing the spouses to remain apart. Again, it’s important to note the marriage still exists and the spouses aren’t free to marry others.
There are external conditions that need to remain intact, such as health insurance or pensions. A legal separation allows the spouses to live separately while retaining those types of benefits, which a divorce would disrupt. In some cases, the ability to continue filing taxes jointly can provide tax benefits that the couple wouldn’t receive if divorced and filing separately.
What Are the Disadvantages of Legal Separation?
The biggest disadvantage is the inability to remarry. A legal separation does not dissolve the marriage, so spouses are still married to each other and can’t enter into a new marriage.
One of the advantages of a legal separation is also, in a way, a disadvantage. Like going through a divorce, going through a legal separation process takes time and has to consider various aspects of the couple’s life, including financial and especially if there are children. It’s not always an easy process. It provides protections, but it takes work to get there.
Another disadvantage arises if one spouse believes there are financial reasons they don’t want to be married anymore, such as the other spouse building up considerable debt. A divorce separates the solvent spouse from the financial irresponsibility of the other.
What Are the Advantages of Divorce Over Legal Separation?
If someone is certain the marriage is over and any benefits, such as financial or retaining health insurance, don’t tip the scales in favor of a legal separation, then a divorce would finalize the end of the marriage. If it seems the only thing to do, prolonging the process by trying a legal separation first may not make sense, especially since the processes for legal separation and divorce are similar, take a significant amount of time and emotional energy, and both involve legal costs.
If one spouse wants to remarry, divorcing the prior spouse is the only way that can legally happen.
When a couple is still married, they are each other’s next of kin. That has legal ramifications for things like financial and medical decisions, as one spouse can make those decisions on behalf of the other if the other is incapacitated. If one spouse doesn’t want the other to have next of kin rights, divorce is the best alternative to sever that connection.
What Should I Do When Considering Legal Separation or Divorce?
Call us at 312-219-2139. Our legal teams have extensive experience working on all aspects of separation and divorce, and we can help you learn what you need to know and make the decisions that need to be made. We know this can be a stressful, emotional time, and we’re here to guide you through it.