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Are You Required to Separate Before Divorcing in Illinois?Once you and your spouse have decided that you want to divorce, you likely want to start the process as soon as you are ready. Creating a divorce agreement can take months while you gather information, negotiate the terms, and wait for your court date. You may also wonder whether Illinois requires you to live separately before you can file for divorce. If you ask this question to someone who got divorced five or more years ago, they may tell you that they had to live separately for months or years before they could divorce. However, Illinois divorce law no longer requires spouses to live separately, though proving that you have already been separated can help in some cases.

How Separation Helps

Illinois practices no-fault divorce, meaning that spouses do not cite grounds such as infidelity for divorcing. Spouses will often, but not always, agree on filing for divorce. When a spouse disputes a divorce, the divorce filer only must prove that there are irreconcilable differences. Prior to 2016, Illinois required spouses who both agreed to divorce to live separately for six months before they could file. If they disagreed on getting a divorce, the separation requirement to prove irreconcilable differences was two years. However, Illinois changed its divorce law in 2016:

  • Spouses who both agree to divorce can file immediately.
  • If the spouses disagree, showing that they have lived separately for at least six months will create a presumption of irreconcilable differences.

Even without living separately, citing irreconcilable differences is fairly easy to prove to the court. Even if spouses disagree on whether their marriage can be salvaged, the court may rule that the disagreement is proof of irreconcilable differences.

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Using Your Separation to Prepare for DivorceAttorneys often advise clients that legally separating from your spouse is an unnecessary step if you are certain that you will be getting a divorce. You must negotiate the same financial and parenting issues as during a divorce without being free of your marriage. However, some spouses find themselves going through an informal separation period before they formally file for divorce. Living apart may help them feel certain that getting a divorce is the correct decision, even though it means dragging their feet on starting the divorce process. There are several ways that you can prepare for your divorce while separated from your spouse:

  1. Find a Lawyer: You should start by consulting with a divorce attorney to learn more about the process. An attorney can explain what you are allowed to do during your separation and what will happen if you start your divorce.
  2. Protecting Nonmarital Properties: During your divorce, you will categorize your personal properties as either marital or nonmarital. Nonmarital properties are ones that you purchased before your marriage and have remained independent of your marital finances. You can claim properties that rightfully belong to you and would not be part of the division of property.
  3. Identifying Marital Properties: It is important to know what your marital properties are and how much they are worth. Your separation is a time when you can start researching this by collecting receipts and contracts related to the properties. When your divorce starts, you should have a list of marital properties and understand which ones are most valuable to you.
  4. Closing Joint Credit: Spouses share their marital debts after a divorce, and you do not want to be responsible for your spouse compiling greater debt while you are separated. Try to pay off and close your joint credit accounts. You should avoid making major purchases in general when you may be getting a divorce.
  5. Create a Parenting Schedule: You can build the framework of your divorce parenting agreement during your separation. You should be sharing responsibility for your children, even if they are living with only one of you. You have more flexibility now to figure out what parenting schedule works best before it becomes a formal court agreement.

Contact a Warrenville Divorce Attorney

It is natural to be uncertain about whether you want to divorce your spouse. A DuPage County divorce attorney at Calabrese Associates, P.C., can explain the process and help you come to a decision. To schedule a consultation, call 630-393-3111.

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