What is the Difference Between Divorce and Legal Separation?

 Posted on December 31, 2025 in Divorce

Divorce and legal separation are different legal processes under Illinois law. While both involve court filings and enforceable orders, they lead to very different legal outcomes. The most important distinction is whether the marriage legally ends.

If you have questions about which option is right for you, our Arlington Heights, IL divorce lawyers can help guide you based on the unique circumstances of your case.

What Does Illinois Law Say About Divorce?

Illinois is a no-fault divorce state. Under 750 ILCS 5/401, a court may grant a divorce when the marriage has irretrievably broken down. The court does not decide who is at fault. Its role is to legally dissolve the marriage and resolve all remaining legal ties. Once the court enters a final judgment, both spouses are legally single and free to remarry.

A divorce judgment addresses property division, debt allocation, parenting matters if applicable, child support, and spousal maintenance. These orders are meant to fully separate the spouses’ legal and financial relationship.

What Is Legal Separation in Illinois?

Legal separation allows spouses to live apart while remaining legally married. It is a formal court process, not simply an agreement between spouses.

Illinois law permits legal separation under 750 ILCS 5/402 when spouses live separate and apart and at least one spouse asks the court to step in. The court may issue enforceable orders, but the marriage itself continues. Because the marriage is not dissolved, spouses who are legally separated cannot remarry.

How Are Property and Debt Handled in Divorce Versus Legal Separation?

Property treatment is one of the most significant legal differences between divorce and legal separation in Illinois.

In a divorce, the court must divide marital property and debts under 750 ILCS 5/503. The goal is a fair distribution based on the circumstances of the marriage.

In a legal separation, marital property is generally not divided unless both spouses agree in writing. Assets and debts often remain unresolved until a divorce is filed. This distinction can affect long-term financial planning and should be understood before filing.

Can Child Custody and Support Be Decided During Legal Separation?

Courts may enter orders related to children in both divorce and legal separation cases in Illinois. Parenting time and decision-making responsibilities can be addressed by the court. Child support can also be ordered based on the child’s needs and each parent’s financial situation. The legal standard does not change based on marital status. Courts focus on the child’s best interests in both situations.

Can Spousal Maintenance Be Ordered During Legal Separation?

Maintenance, sometimes called alimony or spousal support, may be awarded in both divorce and legal separation cases. Courts consider income, financial need, and fairness when deciding whether maintenance is appropriate. The legal analysis is similar, but the lack of property division in legal separation cases can affect how maintenance works over time. Maintenance orders entered during legal separation may later be reviewed if a divorce is filed.

In What Situations Do People Use Legal Separation in Illinois?

Legal separation is not common, but it is used in specific situations where spouses want court orders without ending the marriage.

Examples of situations where legal separation may arise include:

• Spouses who need court-ordered support while living apart

• Couples who want formal parenting orders but are not ready to divorce

• Situations where one spouse does not consent to divorce

• Periods of separation where reconciliation is still possible

• Cases where marital status affects benefits or obligations

While legal separation isn’t a final break, it can offer some structure.

How Long Does Legal Separation Last Compared to Divorce?

A divorce case ends when the court enters a final judgment dissolving the marriage. At that point, the legal process is complete.

Legal separation does not have a set end date. It continues until the spouses reconcile, either spouse files for divorce, or the court changes the existing orders.

Can You Get Divorced After a Legal Separation in Illinois?

A legal separation does not automatically become a divorce. It also doesn’t prevent either spouse from filing for divorce later. A separate divorce filing is required, and any unresolved issues, such as property division, must still be addressed.

Orders entered during the legal separation may be reviewed or modified during the divorce, depending on the circumstances. Legal separation can delay divorce, but it does not replace it.

Are Temporary Orders Used in Both Divorce and Legal Separation?

Temporary orders are common in divorce cases. Under 750 ILCS 5/501, courts may issue temporary orders related to support, parenting time, or use of property while the case is pending.

Legal separation may involve similar court orders. The difference is not the type of order, but the legal status of the marriage. Divorce orders lead to a final dissolution. Legal separation orders can only exist within an ongoing marriage.

What Problems Can Arise When the Wrong Option Is Chosen?

Choosing between divorce and legal separation can create unexpected issues if the long-term effects are not fully understood. Many people focus on short-term needs, such as living arrangements or temporary support, without realizing how the choice affects future rights and obligations.

For example, property division can be a big issue during legal separation. Assets or debts may continue to build together, even while spouses live apart. In contrast, divorce creates a clear legal and financial division of what belongs to whom.

Legal separation can also delay closure. If a divorce is eventually filed, unresolved issues still must be addressed. That can increase costs and extend the overall timeline. Understanding these downstream effects early helps prevent surprises later. It also allows people to choose the option that best fits their financial and family goals.

Contact Our Arlington Heights, IL Divorce Attorneys Today

At A. Traub & Associates, we have helped individuals and families across Northern Illinois with legal issues for over 20 years. As a female-led law firm, we approach family law matters with a focus on clarity, balance, and practical guidance during difficult transitions.

If you have questions about the difference between divorce and legal separation, contact our Arlington Heights, IL divorce lawyers today. Call 630-426-0196 to schedule your consultation and speak with someone who has extensive experience in these cases.