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Legal Separation Vs. Divorce

Legal Separation vs. Divorce

After the breakdown of a marriage, in most cases divorce is the accepted and appropriate course. If however the parties are opposed to divorce for religious reasons, financial or insurance issues or simply want to separate before deciding whether to pursue a divorce, then legal separation may be a suitable alternative.

Legal Separation vs. Divorce

The main difference between a legal separation and divorce is the status of the marriage.  With a legal separation, the parties are still legally married but are considered to be living separate and apart.  Thus, the parties are still considered married for some purposes, such as keeping a spouse on a health insurance plan, but single for others, such as their tax filing status.  In a divorce, the parties’ marriage is ended for all purposes.

Another important distinction is that in a contested divorce, the court has the power to determine child support, custody of minor children, maintenance and divide property.  In a legal separation, the court also has the power to determine child support, custody and maintenance but it may divide property only if the parties agree.  The Law Offices of Azita M. Mojarad, P.C. can help you determine whether a legal separation is appropriate in your case.

Deciding the Conditions of Your Separation Agreement

A legal separation agreement can allow the parties to provide for support, determine custody, and divide property without going forward with a divorce.  However, if the parties reconcile after the judge approves the separation agreement, the court may determine that the separation agreement shall remain valid as a post nuptial agreement.  Alternatively, if the legal separation should carry through to a future divorce proceeding, the court may find the legal separation agreement binding on the parties.  Consequently, a well drafted separation agreement is key to obtaining your goals during the separation and preserving your rights should you decide to reconcile with your spouse or alternatively pursue a divorce proceeding.

The attorneys at the Law offices of Azita M. Mojarad, P.C. can help you negotiate a fair separation agreement to protect your best interests during and after the separation.

Physical Separation Requirement

Illinois law holds that for legal separation, the parties need not be living in separate households at the time the petition is filed but must be living in separate households when the judgment for separation is granted.  This provision may be helpful in cases where the couple may want to continue to live in the marital home during the pendency of the separation petition for valid financial or emotional reasons, particularly when minor children are involved.

While few couples will choose legal separation, it may be a practical option for certain couples under certain circumstances.  The Law Offices of Azita M. Mojarad, P.C. can advise you of the advantages and pitfalls of legal separation and help you select the right option for your particular situation.


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