Can I File for Divorce Before I Move Out?

 Posted on October 22, 2019 in Divorce

If you have reached the point in your marriage where you believe that your relationship is beyond saving, you have most likely given a great deal of thought to filing for divorce. In fact, a divorce might be your best option. However, you might be hesitant to file your divorce petition while you and your spouse are still sharing a home. As you probably realize, many couples will go through a “trial separation” before filing for divorce, but is a separation actually necessary? According to the law in Illinois, the answer is “not usually.”

Legal Separation vs. Living Separate and Apart

It is important to understand that very few couples pursue legal separation in Illinois. A legal separation is similar, in many aspects, to a divorce, with the primary difference being that the couple is still legally married. While seeking a legal separation, issues such as spousal maintenance and parental responsibilities must be addressed, and the couple could opt to divide their property as well. (The court will make property division decisions for a legal separation.) Once an order for legal separation has been entered, it can only be vacated by a petition by the spouses or by a subsequent judgment of divorce.

On the other hand, most couples will undergo a period of living separate and apart before they get divorced. In such cases, one spouse will typically stay with family or find an apartment while the couple decides whether or not to continue working on their relationship. In some situations, the decision to get divorced has already been made before one of the spouses moves out.

Understanding Illinois Law

Prior to 2016, a couple was required to live separate and apart for up to two years before a no-fault divorce judgment could be entered. If the spouses agreed, the separation period could be reduced to six months. In 2016, however, the law in Illinois was changed to eliminate the required period of living separate and apart. Today, a couple can obtain a divorce without living apart for even a single day—though most couples still opt to do so.

If both spouses are not in agreement about the divorce, however, a six-month period of living separate and apart will be accepted by the court as irrefutable proof that the marriage has broken down beyond repair. This means that if your spouse is refusing to participate in the divorce process because he or she does not believe that you have irreconcilable differences, the court can force the process to continue after you have lived apart for six months. If your spouse continues to refuse to participate, the court could enter a default judgment in your favor.

Call a DuPage County Family Lawyer for Help

When you are considering a divorce, it is easy to become confused, overwhelmed, and uncertain about the road ahead. Fortunately, the experienced Naperville divorce attorneys at Pesce Law Group, P.C. can help. Call 630-352-2240 to schedule a free consultation with a member of our team today. We will work with you in protecting your rights so that you can focus on building a happier, healthier future.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59