Illinois law permits a married couple to seek what's known as a legal separation. The process is straightforward, requiring that one of the spouses complete and file a simple petition. A legal separation proceeding results in an order from the court resolving all issues surrounding the marital relationship, including division of assets and debts in most cases and those relating to children.
The only real difference between a legal separation action and divorce under Illinois is that the marriage itself is not terminated in a legal separation. Otherwise, the provisions are much the same.
Locating the Documents
You won't need to write your petition for separation from scratch. You can obtain a standard form or template, which is available from the circuit court clerk in the county where you reside. You can also download a template for a petition and all the necessary documents associated with a legal separation from your local circuit court website.
Read through the documents so you're sure you understand them before you get started.
The Basic Requirements
You must have lived in the state for at least 90 days to file for legal separation in Illinois. You can still get a legal separation as long as you meet the residency requirement if your spouse doesn't and never has lived in Illinois, but the court might not be able to determine important issues like child support and spousal maintenance.
Your children must normally live in the state for at least six months before you file if custody is involved. You and your spouse must be living apart, either by mutual consent or because one of the parties has done something to damage the marriage. You can file for legal separation as long as you're not the one who misbehaved. Otherwise, your partner must file and you can choose whether you want to agree with the petition.
Completing the Petition
Completing the petition requires that you include basic information about yourself, your spouse, your finances and your children. The standard form or template includes blanks where you can enter the information required by Illinois law. A simple signature completes the petition when you're finished. You don't have to sign in front of a notary.
If you're separating by mutual agreement, your spouse will sign the petition as well. Joint petitions are routinely filed in Illinois circuit courts.
The Rest of the Process
Take the documents to the court in the county where you'll file the petition. This is usually the county where your spouse lives, but if your spouse lives outside of Illinois you should file in the county where you live instead. Pay the filing fee, which can vary from one Illinois circuit court to another. The circuit court clerk can tell you how much the fee is in your county.
Serving the Petition
The party who files the petition must have it served on the other spouse through a process server when spouses don't file jointly for separation. The petition should include a summons, notifying the other spouse that he's the subject of a lawsuit for legal separation. You would prepare and file the summons along with your petition.
The spouse who receives the petition and summons must file a written answer. He's considered to be in default if he doesn't, and the court will normally award the filing spouse all she's asked for in her petition when this is the case.
All these documents are then considered by a judge at a hearing to decide whether or not to grant a legal separation.
Separation vs. Divorce
Even if you file for and are granted legal separation, you and your spouse can opt to file for divorce at a later date. Keep in mind that you and your spouse cannot legally enter into marriage with others until that time because you're still legally married.
If your spouse objects to a legal separation and wants a divorce instead, the court will most likely dismiss your legal separation case. A legal separation case in Illinois requires that both spouses either agree to the procedure or one spouse desires a legal separation and the other spouse doesn't object. A spouse filing for divorce trumps the other spouse seeking a legal separation.
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