October 25, 2020

Volume X, Number 299

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What Qualifies as Living Separate and Apart in a Chicago Divorce?

One of the divorce topics we have been asked about recently involves the Illinois requirements forliving separate and apart. With Shelter in Place moving into new phases, many individuals are finding that they do not want to remain married to their same spouse during the second wave of pandemic shutdowns.  However, there is a lot of information out there regarding separation requirements for getting divorced in Chicago, all of which should be clarified.

Illinois used to have a two year mandatory separation period for alleging irreconcilable differences as the basis for divorcing.  However, if you alleged grounds, such as mental cruelty or adultery, you could shorten the mandatory separation to six (6) months.  This was changed recently in Illinois law.  Now, the law states that if you have lived separate and apart for six (6) months or longer, there is a rebuttable presumption that irreconcilable differences have occurred, so as to allow you to proceed with a divorce.  Many litigants wonder what a six (6) month separation means, exactly.

Can We Be Living Separate and Apart While Living in the Same House?

You can live in the same household during your separation.  During the last recession, many couples wanted to get divorced but could not afford to live in separate residences.  Therefore, they had to live separate and apart under one roof.  This is permissible in an Illinois divorce.  A divorcing couple can live in the same house but in separate parts (i.e. someone sleeps in the guest bedroom, and the other spouse in the master bedroom or lives out of the basement, etc.  It is completely fathomable that two people can live at the same address and be considered separated for purposes of Illinois law.

When is our Separation Date?

The separation date may not be the same date for both parties in a Chicago divorce.  Sometimes, one party may start a new relationship, and to that person, the date that they began the new relationship is the date the marriage first broke down.  Other couples may go through a period without any intimacy and the beginning of that time may be the beginning of the separation period.  

The start date may not be the same for both parties.  But, if they can agree on a start date that is more than six (6) months previous to the date the divorce is entered, there won’t be any debate about which separation date is “correct” as it is a moot point, so long as one of the parties truly believed the separation date was more than six (6) months prior and the other person doesn’t object.  

What About an Attempt at Reconciliation?

If parties try to reconcile the marriage while separated, that does not count against the separation date.  In other words, attempts at reconciliation do not count “against you” and the date you began living separate and apart.  So, let’s say someone had an affair a year ago and the other party found out, and the couple decides to separate.  If they go through a month of trying to rekindle their relationship and reconcile their differences, but then decide that, again, it isn’t working out, they could technically still utilize the first separation date.

Separation Date is Circumstantial and Varies with Each Case

The separation date is completely circumstantial and varies with each case.  It is important to consult legal counsel about this issue to avoid any delays in proceedings if there is uncertainty as to when your separation date was and if it has been six (6) months.


This posting is for educational purposes only to give you general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney-client relationship between you and the National Law Review and/or the author, and the opinions stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

Anderson & Boback Copyright © 2020 All rights reserved.National Law Review, Volume X, Number 206
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About this Author

Jessica Marshall Family Law Attorney

Jessica Marshall is a real go-getter who stands up for what she believes in, which is fighting for your rights, and the rights of children. Jessica has a strong desire to help people and makes a difference with her clients and their families by taking action to help solve their problems.

Jessica Marshall is not afraid to fight for your rights, she is comfortable in the courtroom and respected by colleagues, judges and clients. Her achievements include participating in a successful win with an Appeal before the United States Court of Appeals....

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