Do We Need to Be Separated Before We Can Divorce?

Many couples, especially young couples, may not familiar with the various stages of the divorce process, at least as far as the law is concerned. You are probably aware with how such things usually occur from a practical standpoint, just by knowing people who have experienced them. A couple decides they can no longer stay together, one spouse moves out, and over time, they decide to proceed with the divorce. But does the law require you take similar steps before a divorce can be granted?

Legal Separation vs. Living Separate and Apart

When most people talk about a couple who are separated, they are very rarely referring to a legal separation. Legal separation is a legal arrangement between married spouses who have agreed to live separately without dissolving the marriage. It generally requires the couple to reach an agreement on property, parenting responsibilities, and spousal maintenance, but the spouses remained legally married. Some couples may eventually proceed to divorce, but many do not.

Illinois law does not require a couple to be legally separated prior to a divorce judgment being entered, but, in some cases, a period of living separate and apart may be necessary. Living separate and apart means that the spouses are no longer residing as a couple, though case law precedents have determined that they may still live under the same roof and be considered separate and apart. There is no formal agreement or arrangement to document the period of living separate and apart.

Relaxed Requirement for 2016

Prior to this year, a couple seeking a divorce on the no-fault grounds of irreconcilable differences was required to live separate and apart for at least two years before the divorce would be granted. By agreement of the parties, the requirement could be reduced to six months. Last year’s changes to the Illinois Marriage and Dissolution of Marriage Act—which took effect January 1, 2016—now permit a couple to obtain a divorce with no separation period. In the event that one spouse opposes the divorce, living separate and apart for a period of six months will be seen by the court as proof that marriage has broken down, and the divorce may proceed.

Get the Answers You Need

If you are thinking about divorce and have questions about the process, contact an experienced Orland Park family law attorney. We will work with you in understanding the law and in making the best choice for yourself and your family. Call 708-518-8200 for your free initial consultation at Kezy & Associates today.