Can I obtain a Legal Separation?

Obtaining a legal separation is one of the most misunderstood processes in family law.  Hollywood has portrayed a "legal separation" as something similar to a divorce, or something you should try out to see if a divorce is something you really want.  This false sense of what "legal separation" means leaves many people wanting it - if for no other reason, to avoid a full blown divorce or to take a divorce for a test drive.


While there are many circumstances where a spouse may prefer to be separated from their spouse, there are many times when a legal separation is simply not available under the current draft of Illinois law.  One of the keystone obstacles to many, is that they must be physically separated from their spouse, and not by there own doing.  So, if you were the one that moved out (for whatever reason), then a legal separation is not available under your circumstances. 


Other issues usually plague a legal separation, because even after the process is complete - there are issues that remain unresolved.  One important example is that marital property and assets are not typically divided in a legal separation case.  So, if you're looking to get away from your spouse's spending issues, debt, or other liability, a legal separation doesn't accomplish that mission.  Your income and assets remain at risk.  Another example is that a legal separation doesn't spare you any expense or time when it's time to divorce.  While the terms of the legal separation may help, many issues may be re-litigated.


Many spouses have come to me and wanted a legal separation for purposes of getting away from their spouse, but wanting to remain on their spouse's health insurance benefits.  At one time, this was a viable reason for a legal separation; however, now many insurance companies (and employers) consider a legal separation as a "life event" causing the termination of the spouse's coverage - much like when you're divorced.  So, this option no longer remains viable in the legal separation arena.


All said, many wonder as to why would anyone want a legal separation, or under what circumstances?  The answer is simple.  Sometimes spouses find themselves needing (and wanting) to care for the other when disease or tragic injury affects the family.  Many times in these circumstances, one of the spouses is placed in full-time care or within a "nursing home."  In the effort to qualify for better State benefits, a support amount is set up (usually low) for the spouse needing care.  This can be done with a legal separation case.  Once the support is set, the injured spouse can better qualify for State benefits to pay for what would otherwise be expensive full-time care.


If you have any questions about this material,
please call Paul D. Nordini at (480) 527-9000
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