Six-Month Separation Sufficient for Divorce Filing
When a couple separates in anticipation of divorce, they may have decided that the separation is the beginning of the end. If the couple agrees that they are ready for divorce, there is a welcome change in the revisions to the Illinois Marriage and Dissolution of Marriage Act that went into effect at the beginning of this year.
Under the old version of the law, a separated couple had to remain separate and apart for two years before filing for divorce. There was an exception that if the couple could agree and sign a waiver, they could file for divorce sooner, as soon as six months after the separation. Under this year’s changes, no period of separation is required before spouses are able to pursue a divorce.
Part of the revision to the law is an elimination of the numerous grounds of divorce that existed and requiring only that the parties claim irreconcilable differences. This change seems to follow the trend in practice in many Illinois divorces where couples routinely agreed to irreconcilable differences instead of going through the trouble of alleging and proving the other grounds. When a couple has been separated for six continuous months before filing for divorce, there is an irrefutable presumption that they have irreconcilable differences sufficient to qualify as grounds for divorce. The presumption would mean that the couple has less to present to the court in terms of evidence to begin the divorce.
Separate and Apart
Illinois courts did not consider the requirement that the couple be separate and apart to mean that the couple had to live in different homes. It was acceptable that the couple live in the same home as long as they had stopped living as a married couple. For example, the couple could live together, sleep in different rooms, maintain separate accounts, and still be considered separate because they would not be functioning as a married couple.
A person who is separated from their spouse may still apply for maintenance. While this may have been more important during a two-year separation, the provision for temporary support was not revised with the changes. If the couple is residing in different homes during the separation, one or both parents may file for temporary custody or any children. Awards of temporary support or custody can be changed later, and it does not mean that the temporary orders are indicative of the final outcome after the divorce.
Contact an Experienced Family Law Attorney
If you are considering divorce and would like to discuss the process, what to expect and how the divorce may affect your financial life, contact our experienced DuPage County family law attorneys today to discover how we can be of assistance to you and your family.