Deciding to Separate: What to Consider Before Divorcing

Marriages in Trouble

When marriages are going through difficult times, there are often several steps the couple can take before they ultimately decide that divorce is the only viable option. Some couples informally separate while others proceed through a formal process of legal separation within the court system.

Physical Separation

One of the first and most symbolic steps is to physically separate. This usually means one spouse moves out of the marital home. This could be on a temporary basis or even a semi-permanent basis where one spouse gets his or her own separate space. Having a set period of time for the separation, whether it is a month or six months, may help the couple decide what to do by allowing them to better focus on the marital issues by making them a priority.

Seeking Counseling

A couple may want to seek couples counseling during their separation. Going to counseling whether as a couple, individually, or in a group setting may be a way of working through the couple’s differences by having an independent third party provide objective feedback about the relationship.

Separating Finances

If the separation is partly based on financial issues, separating finances as quickly as possible may be a first step in reducing the conflict. This may mean closing out join bank accounts or changing the title of certain property so that it belongs to just one spouse. Separating the finances while separated, but still married, may allow both parties to have time to find their own financial independence during the marriage, should they decide later on to go their separate ways.

Communication

Having a structured schedule about how the couple communicates during the separation period can be helpful. This might mean limiting their interactions to just telephone or email contact, or could be as specific as defining the exact parameters of any communication.

Explaining it to the Children

One of the more difficult issues to tackle the explanation of the separation to the children. If there are children involved, explaining to the children what is happening and keeping the children from feeling any blame or guilt associated with the separation may require a lot of time and energy, and the couple may need to get additional support through counseling or from other family members for the children during this time.

Laws in Illinois

Legal Separation is a formal procedure through which the parties go that requires the parties to appear in court in front of a judge who issues a court order or judgment. The order will lay out the guidelines by which the separated couple may abide while living apart and also what obligations they have under the order. A legal separation is not considered a divorce, and does not end the marriage.

Asset distribution and property ownership issues are generally not discussed at this stage in the process. However, the judge can determine which party can reside in the marital home and what amount of spousal or child support may be paid to one of the parties. Custody and visitation issues may also be addressed.

There are requirements under the the Illinois Marriage and Dissolution of Marriage Act that must be satisfied before the couple can obtain legal separation. First, the couple has to be living in different places when they decide to file with the court. Second, the party who is asking for legal separation has to prove they are not at fault for the separation.

Because legal separation is not the same as a divorce, the parties are still considered married, and thus cannot marry anyone else during this time. With this, the parties are still entitled to any property rights of the other spouse, should the other spouse die during the separation period.

Resources

If you are going through a difficult time in your marriage and would like to speak with someone who can explain to you your options, do not hesitate to contact one of our experienced Wheaton family law attorneys today.