Thinking of a divorce is distressing and can get complicated pretty quickly. Knowing how to start the process – emotionally, mentally, and legally – adds to the stress. One thing that is asked quite often these days is if a legal separation is required prior to filing for divorce. Many states require some kind of waiting period or separation before a spouse can file for divorce. Is Illinois one of those states? 

No, in Illinois, since 2016, married couples no longer need to wait two years (or 6 months upon request) before filing for a divorce on the grounds of irreconcilable differences. 

What does Illinois law say about living separate and apart before divorce?

Current Illinois law does not require a married couple to live separate and apart before filing for a divorce. This is true in Dupage County, Cook County, and any other county throughout Illinois.

There are only two requirements that must be satisfied prior to filing for divorce in Illinois, and they are:

1. Residency in the State of Illinois for 90 consecutive days; and
2. Residency of at least one of the spouses in the county where divorce is filed – e.g., if you file in DuPage County, one of you must live in Dupage County.

Are there benefits to living separate and apart before divorce in Illinois?

If you know beyond a shadow of a doubt you want a divorce, living separate and apart for any amount of time probably isn't useful. It all really depends on you and your unique situation. You can opt for a legal separation, which involves a document outlining the separation, including custody and spousal support, the last of which you may not get upon divorce but can during the legal separation. This legal separation must be approved by the court, but it is hardly used today. For some persons whose religion does not permit divorce, a legal separation is their best option (but a person cannot remarry so long as he or she is only legally separated and not divorced).

Separating – without the involvement of the court – for a time prior to filing for divorce can be useful when you still have love and care for each other but things have gotten bitter and complicated. Taking time apart to breathe again, to live again, and to learn to like each other again may be beneficial. At some point, you may realize you want to work on the marriage, but you may also realize that living apart is possible and preferable.

Again, it varies from situation to situation. It is something you and your spouse must decide. If kids are involved, you must also remember that both spouses have equal custody unless there is a custody order in place. As such, at any time, one parent can take the other child anywhere. This is important if there are any concerns at all about custody and, in some cases, safety.

If you have questions about what's best for you and your situation, you can always reach out to an experienced family law attorney. One of our family law attorneys at Dolci & Weiland can review your case and help you understand your rights and your options. We can help you make an informed decision. But no one can make the final decision on separation or divorce but you – or your spouse.

Contact Dolci & Weiland today to discuss your unique situation.