Legal Separations are an option under Illinois law (750 ILCS 5/402), but they are rarely used. A legal separation is just like a divorce . . . except you're still married. A legal separation is different from being physically separated. Legal Separations are done in the court just like a divorce case. Papers are filed just like a divorce case. Both parties appear before a judge just like a divorce case. The Judge may order spousal support (formerly known as maintenance or alimony), custody of minor children, and child support just like a divorce case.
Years ago, people used legal separations to prevent their eternal souls from damnation.
Today, divorce lawyers use legal separations strategically in a few types of instances:
· Where one spouse goes off the rails via substance abuse, mental illness, or suffers some catastrophic trauma and becomes a threat to the financial security of the other. A legal separation will create two separate financial estates, thus, hopefully preserving assets from the spouse who is “off the rails.” The bonds of matrimony remain intact which may be beneficial for other purposes; like insurance, school registrations, retirement benefits, and the like.
· In a divorce case that may drag on for a long time and pass some critical financial deadline, we sometimes take advantage of the benefits of legal separations. We usually do this in December, each year, in cases that could realize a financial benefit by wrapping it up before December 31st. Taxes are the most obvious reason, but there are other circumstances where we face a deadline to shelter assets, avoid debt, exercise options, etc. Unfortunately, many cases present other issues (like, custody) that must be resolved before the divorce can be concluded; and that means the case may drag on for many more months. In those cases, we run in to court and agree to a legal separation. That way, the couple gets the tax benefits now and we can wrap up the messy stuff later.
· When the parties want to live separate and apart, but they still want to share health care benefits while the children are still of minority age. Parties may seek a legal separation to allow for one of the parties to continue to be covered by the other parties health insurance benefits, particularly when one party is not working full time in order to care for the parties’ children.