No common law divorce in Illinois

No common law divorce in Illinois

Don’t wait years to get divorced

I hear a lot of people use the term “legally separated” incorrectly. When it is said, they are usually trying to state that they are living separate and apart from their spouse and don’t consider themselves with that person anymore. They usually are living separate lives both emotionally and financially. Some of them never get divorced and or live separated for 10 years or more before getting around to filing for divorce. Those couples usually find out the hard way that their financial arrangment didn’t end when they went their separate ways.

Legal separation is similar to divorce and needs to be ordered by a court. It is has nothing to do with the 6 month or 2-year separation requirement of living separate apart before you can divorced. Also, there is legislation as I write this to abolish the 2 year separation requirement and make it only 6 months. The legal rights of a spouse don’t end when the parties start living separate lives. Property rights and alimony rights still exist.

The best way to explain this concept is through an example A couple is married in 1998. They are students and working part-time. They don’t have an property other than “working” checking accounts and personal property. In 2000, they break up and the Wife moves out an apartment an hour away from Husband. Neither of them speak again or have any contact until 2011, when Wife files for a divorce from Husband. Wife had just lost her job, but had been working and has about $5,000 in the bank. Husband now has an MBA and earns close to $200,000 per year. His assets are around $150,000.

What is the likely outcome? The parties will divide their assets equally 50/50. That means Wife could get about $72,500 of Husban’s money that he earned without any contribution by Wife. Husband would get credit for his share of Wife’s $5,000. Arguments can be made that neither party should receive any of the other’s property. A Judge could also a 60/40 or some other split of the assets due the separation. However, since Wife is not working and husband has a good income, it would likely be a 50/50 division with Wife not receiving any maintenance (alimony).

The lesson is not delay filing for divorce if you have been separated more than 6 months and it does not appear you are every going to be in a relationship again with your spouse (especially if you know it for a fact that you won’t be with them again). Most people earn more money over time and accumulate wealth over time. The above scenario can be financially devastating for one spouse and can easily be avoided by taking care a divorce promptly.