Legal Question in Family Law in Illinois

Legal Separation First?: A Two-Step Divorce Is Not Less Expensive.

Illinois law provides: �Any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they so live apart.� This remedy is called a �Legal Separation.�

This section is silent on the question as to whether the parties must reside in separate abodes at the time of filing, and thus such a requirement is not present. Separate and apart is determined by the decree of legal separation.

Legal separation does not include property division, unless the parties agree (or �join issue� by fighting over property).

Attorneys� fees are now the subject of statute, and the court may order a party to pay the fees of the other party. It depends on the particular circumstances of the case as to whether how the lawyers get paid, but it�s almost always coming out of the same marital property or marital income pool. The ultimate question in divorce is -- whose post-divorce share did it come out of? Since there is no �property division� in a legal separation, the question is � how should an award of support/maintenance be adjusted to account for the payment of fees by one party or the other.

Just because you were awarded attorneys� fees for a legal separation proceeding does not mean you won�t get fees upon a later divorce.

Getting a legal separation is a substantial step which requires, to do well, nearly as much legal experience as one would require for a divorce. Its cost is not substantially less, since grounds and property division are the only issues left unresolved (custody issues are determined in both proceedings) (if child support is all you are after, there is a better way to get it, but that's a subject for another day). One must consider the property issue a legal separation proceeding anyway, in order to effectively present a case in support of (or against) a separate maintenance award, including discovery about property, analysis, weight/valuation, conversion to a form of evidence for presentation, and introduction into evidence at a hearing.

f you�re trying to save money, it makes no sense to let one proceeding terminate after most of the work is done, and then restart it all over again. It is not foreseeably less expensive to turn your divorce into a two-step process (legal separation first, divorce later). I predict it would cost more.

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