Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com

Q: I am thinking about separating from my spouse before we divorce. I have been told that I should get legally separated as that will protect my rights as well as make my divorce go smoother. Is that right?

A:Maybe, maybe not. There is no requirement that a couple be legally separated legally before they get divorced. In fact, unless you are using the grounds of irreconcilable differences in your divorce, there is no requirement that you even be physically separated from your spouse. A lot of couples, however, use a period of separation as a time to decide if they are going to get divorced. Consequently, the idea of a legal separation seems attractive as a way to resolve or prevent disputes that may arise if they go through a divorce.

Unfortunately, a legal separation doesn't do much in Illinois. In fact, most couples will not gain by going through a legal separation unless they fall into one of two groups - those who need maintenance and those who have children.

Relief you can get through a legal separation: In Illinois, the relief allowed in a legal separation is very limited. Besides awarding child support and maintenance (what we used to call alimony), the court only has the jurisdiction (power) to make a decision on the issues of child custody and visitation. Keep in mind that all of this relief is relief that you could get when you file for divorce.

Relief you cannot get through a legal separation: A lot of couples want to go through a legal separation because they can divide up marital property or marital debt. Similarly, they hope that a legal separation will prevent additional marital debt or property from being created and thus make their eventual divorce (or reconciliation) go smoother.

Unfortunately, this is not the case. A court does not have jurisdiction to make decisions as to the division of marital property or marital debt until a petition for divorce has been filed. While one Illinois appellate court has stated that if the parties both agree that the court has jurisdiction to make these kind of divisions, keep in mind that even if your court agrees to such a property or debt allocation, it will not prevent additional marital property or debt from accumulating. The only way to stop this is to end the marriage through divorce.

Do you have a legal question? Write us at Self Help Legal Center, SIU School of Law, Mailcode 6804, Carbondale, Illinois or e-mail us at selfhelp@siu.edu. Not all questions will be answered and may be edited for space or content.

Legalities is written by the Self Help Legal Center, a public service of the SIU School of Law. The Self Help Legal Center cannot provide legal representation. It can, however, help you find the answer to your legal problem. This column is for general legal information purposes only and the advice given in this column may not apply to your situation. For specific legal advice about your situation, you should consult an attorney licensed to practice in Illinois. This column is not meant to give legal advice and does not create an attorney-client relationship.