Illinois Legal Separation Agreement
Illinois grants a court judgment of legal separation for support and maintenance, but the court may not divide property unless the spouses agree. Attorney review available.
Find out where you stand in Illinois
What are you trying to arrange while staying married?
DocDraft provides document preparation, not legal advice.
Introduction
Illinois grants a court judgment of legal separation under 750 ILCS 5/402: any person living separate and apart from a spouse may ask the court for a remedy of reasonable support and maintenance while they live apart, without ending the marriage. The Illinois rule that sets a legal separation apart from a divorce is what the court does with property. In a judgment for legal separation the court may not value or allocate property in the absence of an agreement between the spouses (750 ILCS 5/402), so unlike a divorce, an Illinois legal separation does not divide the marital estate unless the spouses hand the court a property settlement they have asked it to incorporate. The action is brought in the circuit court of the county where a party resides or where the spouses last resided together as husband and wife. A legal separation does not end the marriage, and neither spouse may remarry while it stands; the marriage ends only through a later divorce. When the court awards maintenance in a legal separation it weighs the same statutory factors used in a dissolution (the Section 504 factors). Couples choose an Illinois legal separation to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding whether to divorce. Because Illinois will not divide property in a legal separation without the spouses' own agreement, the terms that divide marital property and debts belong in a written settlement: see the Illinois Marital Settlement Agreement. If you decide to end the marriage instead, the pleading that starts it is an Illinois Divorce Petition. DocDraft builds your Illinois legal separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
- 1
Illinois grants a court judgment of legal separation under 750 ILCS 5/402: a person living separate and apart from a spouse may obtain a remedy of reasonable support and maintenance while they live apart, without dissolving the marriage; neither spouse may remarry until a later divorce.
- 2
In an Illinois legal separation the court may not value or allocate property in the absence of an agreement between the spouses (750 ILCS 5/402). Unlike a divorce, a legal separation does not divide the marital estate unless the spouses give the court a settlement to incorporate.
- 3
An Illinois action for legal separation is brought in the circuit court of the county where either party resides or where the spouses last resided together as husband and wife (750 ILCS 5/402).
- 4
An Illinois legal separation does not end the marriage. The spouses stay legally married while living apart, and the marriage is dissolved only through a later divorce.
- 5
When an Illinois court awards maintenance in a legal separation it weighs the same statutory maintenance factors used in a dissolution of marriage (the Section 504 factors), so support is decided on the same basis as in a divorce.
- 6
Couples choose an Illinois legal separation over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce.
- 7
Because Illinois will not divide property in a legal separation without the spouses' agreement, the terms that divide marital property and debts belong in a marital settlement agreement rather than the separation itself; see the Illinois marital settlement agreement page.
Key decisions before you file
Before you file a Legal Separation Agreement in Illinois, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
Open the Legal Separation Agreement guideCustomize your Legal Separation Agreement Template with DocDraft
Illinois Requirements for Legal Separation Agreement
Illinois grants a court judgment of legal separation under 750 ILCS 5/402. A person living separate and apart from a spouse may obtain a remedy for reasonable support and maintenance while they live apart. The couple stays legally married, and the marriage ends only through a later divorce.
In an Illinois legal separation the court may not value or allocate property in the absence of an agreement between the spouses (750 ILCS 5/402). Unlike a divorce, a legal separation does not divide the marital estate unless the spouses give the court a settlement to incorporate.
An Illinois action for legal separation is brought in the circuit court of the county where either party resides or where the spouses last resided together as husband and wife (750 ILCS 5/402). Commencement, temporary relief, and trial follow the same procedure as a dissolution, with the limited temporary relief the statute allows.
An Illinois legal separation does not end the marriage. The spouses stay legally married while living apart, and neither may remarry. The marriage is dissolved only if the couple later obtains a divorce.
When an Illinois court awards maintenance in a legal separation it weighs the same statutory maintenance factors used in a dissolution of marriage (the Section 504 factors). Support is decided on the same basis as in a divorce, and child support follows the Illinois guidelines.
An Illinois legal separation does not bar a later divorce. A spouse who wants to end the marriage files a petition for dissolution of marriage, and the earlier legal separation does not prevent it. In the dissolution the court can then divide the marital estate that the separation did not.
An Illinois legal separation keeps the marriage in place, which can preserve a spouse's health insurance, help reach the ten-year mark for certain military and Social Security benefits, or serve religious or trial-step reasons. Confirm insurance effects with the plan, since many treat a legal separation like a divorce.
Because Illinois will not divide property in a legal separation without the spouses' agreement, the terms that divide marital property and debts belong in a marital settlement agreement. Keep the money and parenting terms in that agreement and rely on the legal separation for status and support.
Frequently Asked Questions
In Illinois, a legal separation is a court judgment entered under 750 ILCS 5/402 by which a person living separate and apart from a spouse obtains a remedy for reasonable support and maintenance while they live apart. The spouses stay legally married and neither may remarry, and the court addresses support without dissolving the marriage. It differs from a divorce, which ends the marriage, and from simply living apart, which by itself does not create a legal-separation judgment. The marriage ends only if the couple later obtains a divorce.
Yes. Illinois is a state where a court can enter a judgment of legal separation under 750 ILCS 5/402. Any person living separate and apart from a spouse may seek a remedy for reasonable support and maintenance while they live apart. Not every state offers this: some provide only a support or bed-and-board action, and a few do not recognize legal separation at all. Illinois does, and it treats a legal separation as an outcome distinct from a divorce.
Not unless the spouses agree. In a judgment for legal separation an Illinois court may not value or allocate property in the absence of an agreement between the spouses (750 ILCS 5/402). If the spouses present a property settlement agreement and ask the court to incorporate it, the court may approve it, and it may disapprove such an agreement only if it finds the agreement unconscionable. This is a key difference from a divorce, where the court divides the marital estate whether or not the spouses agree.
An Illinois action for legal separation is brought in the circuit court of the county where either the petitioner or the respondent resides, or in the county where the spouses last resided together as husband and wife (750 ILCS 5/402). The start of the action, temporary relief, and trial follow the same procedure as an action for dissolution of marriage, except that temporary relief in a legal separation is limited to the categories the statute lists.
An Illinois divorce ends the marriage, so both people are single again and free to remarry, and the court divides the marital estate. An Illinois legal separation keeps the marriage in place: the spouses live apart and the court can order reasonable support and maintenance, but they stay married and neither may remarry. A further difference follows the statute: in a legal separation the court may not value or allocate property in the absence of an agreement between the spouses (750 ILCS 5/402), while in a divorce the court divides property regardless.
A legal separation does not bar a later divorce in Illinois. A spouse who wants to end the marriage files a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act, and the earlier legal separation does not prevent it. In the dissolution the court can then divide the marital property under the equitable-distribution rules, which the legal separation itself did not do unless the spouses had agreed on a division.
An Illinois legal separation is built around support: 750 ILCS 5/402 gives a person living separate and apart from a spouse a remedy for reasonable support and maintenance while they live apart. When the court awards maintenance in a legal separation it considers the same statutory factors that apply in a dissolution of marriage (the Section 504 factors), such as each spouse's income and needs, the standard of living during the marriage, and the duration of the marriage. Child support follows the state guidelines.
People choose an Illinois legal separation over divorce for practical or personal reasons. Staying married can keep one spouse on the other's health insurance, though many plans treat a legal separation the same as a divorce, so confirm with the insurer. Reaching ten years of marriage can matter for certain military and Social Security spousal benefits. Some couples separate rather than divorce for religious reasons, and others use it as a trial step, keeping the option to reconcile or to file for a divorce later.