Legal Separations are Unnecessary!
Often times clients come to me and ask for a legal separation. A legal separation is just that. It is a means to legally live separate. The essential effect that it has is that it cuts off the marital estate. Therefore, from the date the legal separation is entered, the time period that represents the marital estate is now defined This means that whatever is earned, acquired or accumulated after the entry of the legal separation judgment is not considered a part of the marital estate and therefore is not subject to an equitable division under Illinois law. Only the property acquired or accumulated and income earned during the defined marital estate is subject to an equitable division for purposes of a dissolution of marriage case.
Legal separations are governed by 750 ILCS 5/402 of the Illinois Marriage and Dissolution of Marriage Act, which can be found on this page.
In the years that I have practiced, I have probably only performed two legal separations. They are rare. The reason that they are rare is because they leave the parties to the legal separation in limbo. A legal separation is a temporary fix. It does not conclude all issues like a judgment for dissolution of marriage does. Orders for child support and maintenance can be sought during a proceeding for legal separation. However, courts lack jurisdiction to issue orders for the distribution and allocation of property, unless the parties raise an issue as to property and submit it to the court for its decision.
What eventually happens is the parties will file for a Petition for Dissolution of Marriage or in some cases the parties will reconcile. The cases that I handled were cases where the parties had been married for significant periods of time and that the parties were looking for a cooling off period to sort their lives out and determine whether their marriages were salvageable. In each of those cases, the parties eventually reconciled.
Reconciliation is always possible at any time during a legal separation or a dissolution of marriage. A proceeding for legal separation should not be looked at as a means to a reconciliation. It may provide the parties some time to think things over separately, however, the court in a dissolution of marriage proceeding can also provide the parties time to think things over and determine whether they wish to reconcile or not. Often times, courts will provide parties up to six months to determine whether they wish to reconcile or proceed forward with their divorce case.
In my opinion, a legal separation is simply unnecessary.
Important Points to Remember:
- A proceeding for legal separation is a rarity.
- Temporary support and maintenance can be sought during a legal separation proceeding.
- Court’s lack jurisdiction to distribute and allocate property on their own, unless the parties bring the issue to the attention of the court and request the court’s decision.
- A legal separation will result in either a reconciliation or conversion to a Petition for Dissolution of Marriage.
- Legal separations are unnecessary.
