In Illinois, spouses have the option of legally separating rather than divorcing. Legal separations is an option for spouses who feel that they no longer want to live together as a married couple and would like legal recognition of their separation, but also do not want to divorce. Divorce and legal separation have some commonalities, but a few major differences. After a legal separation, you remain legally married, but may largely live as if you are divorced. As in divorce, you and your spouse will be able to formally divide marital property and create a parenting plan if you have children in common. There are a number of factors you and your spouse should consider before choosing between a divorce and a legal separation. If you are unsure which is best for you, an attorney may be able to help you understand how each may affect you so that you can make a well-informed decision. 

Considerations for Spouses Considering Legal Separation or Divorce

You and your spouse should, if possible, discuss each of these factors before making a final decision. Some factors to consider may include: 

• Possibility of reconciliation - It is much easier to “undo” a legal separation than a divorce. As legal separation does not end the marriage, you and your spouse would not need to get married a second time should you reconcile. If you believe that your separation may not be permanent, a legal separation may be the better option. 

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Most people are familiar with the term “mediation” but may not know exactly what working with a mediator looks like. In an Illinois divorce case, understanding the mediation process is essential for setting realistic expectations and pursuing successful negotiations over your divorce settlement. If you are considering divorce and want to know more about whether a mediator could help you, read on to learn more about what working with a mediator is like. 

What Does a Divorce Mediator Do? 

Before a divorce can be finalized, spouses must reach an agreement about property and debt division, spousal support, and, if there are minor children involved, child support and child custody. Naturally, this can be difficult, especially if spouses have a hostile relationship. The purpose of mediation is to allow couples to put aside their personal differences and negotiate their divorce decree fairly. 

A divorce mediator does not provide either spouse with legal advice. Instead, he or she will help spouses articulate their priorities and preferences on a given subject while keeping the conversation peaceful and focused on problem-solving. The mediator will help couples identify common ground, identify exactly where their differences lie, and think about possible solutions to those differences. Mediation can move quickly or take several months; it depends on how well spouses can get along and compromise. Many couples can resolve their issues in as few as three or four sessions, while others take much longer. 

Illinois is a no-fault divorce state, meaning that spouses cannot give specific reasons for getting divorced other than “irreconcilable differences.” Even ugly or distasteful behaviors such as infidelity and domestic violence will not give one spouse preferential treatment during divorce proceedings. That being said, judges are very sensitive to the physical and emotional danger that domestic violence can cause to spouses and children, and there are protections available to victims of domestic violence. If you are thinking about getting divorced from an abusive spouse, here are some ways you might expect your divorce to be different. 

Getting an Order of Protection

When you are ready to file for divorce, it may be wise to get an order of protection. These are legally binding court orders that require an abuser to stay away from a victim and his or her children, including their schools and workplaces. You can get an Emergency Order of Protection ex parte, meaning your spouse does not have to be present during the initial hearing. However, to extend the order of protection, you will both need to appear before a judge to present your evidence. Your attorney can help you gather evidence and file for an order of protection. 

Custody Matters

Although judges are typically wary of giving parental responsibilities (custody) and parenting time (visitation) to only one parent, if one parent poses a clear danger of violence to children, a judge will not expose that child to such a risk for the sake of preserving the parent-child relationship. Instead, a judge may temporarily grant one parent full custody while giving the allegedly abusive parent supervised visitation. Other times, the abusive parent will get no custody at all. 

The best interests of the child is the backbone of not only the family law system but, ethically, society as a whole. Notwithstanding abuse or neglect, parents generally have certain rights, including the right to parenting time.  However, the situation becomes much more complicated when paternity of a child is unknown. The complexities and nuances of sensitive issues like paternity can be painful, humiliating, and frustrating to both the mother and the father, and most especially, the child.  A  family law attorney can advocate for parentage rights.

Establishing Paternity

Three ways in which paternity is established include the following:

• A Voluntary Acknowledgement of Paternity (VAP) form must be signed by both parents and filed and witnessed by the Department of Healthcare and Family Services.

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Negotiating education expenses for a child in a divorce decree can be contentious, especially if the divorce is acrimonious. In Illinois, child support usually ceases once a child is 18 years old and graduates from high school. After child support obligations cease, some divorced parents may still need to pay higher education expenses. Effective January 1, 2016, Section 513 of the Illinois Marriage and Dissolution of Marriage Act affirms that divorced parents may be required to contribute to their non-minor child’s post-high-school education and living expenses. 

Contingent to the divorce decree, the college contributions that each parent and child are obliged to make can be modified. A divorce attorney understands the complexities of non-minor support and can help modify or enforce the divorce decree.

Stipulations of the Illinois Law 

Section 513 of the Illinois Marriage and Dissolution of Marriage Act includes certain stipulations. Since the financial circumstances of each parent and student may change, the divorce decree can be amended at the court's discretion. A parent may no longer be able to pay tuition and living expenses because of unemployment, illness, or disability. Alternatively, a parent may purposely neglect these obligations.