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.
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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.
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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.
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Illinois Requirements for Legal Separation Agreement
Court Judgment of Legal Separation
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.
No Property Division Without Agreement
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.
Where the Action Is Filed
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.
Marriage Not Dissolved
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.
Maintenance on the Section 504 Factors
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.
Conversion to a Later Divorce
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.
Reasons to Choose Separation Over Divorce
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.
Separation Versus Marital Settlement Agreement
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.