Do My Spouse and I Need to Formalize Our Separation?

 Posted on July 29, 2026 in Family Law

Many couples separate for a time when deciding whether they should keep working at their marriage or get divorced. Often, this separation is informal and does not involve a court case. Some couples may not even be aware that there is a difference between a legal separation and an informal one.

Whether you should formalize your separation depends on your concerns about enforcing its terms. A Hinsdale divorce attorney can help you determine if a formal separation is needed for your situation in 2026.

What Is the Difference Between Living Separately and a Legal Separation in Illinois?

Simply moving into separate homes doesn't create any legal rights or obligations between spouses on its own. Even if a couple comes up with specific terms for their informal separation, the terms generally cannot be backed up by a court.

This is not the case with a legal separation. Section 402 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/402) allows a spouse living apart from their partner to file for legal separation as a way to formally address issues (i.e., financial responsibilities) while a couple is still technically married. Once these issues have been outlined in a legal separation, they are enforceable in court. Failure to abide by the terms can lead to legal consequences.

A legal separation doesn't end a marriage. Neither spouse can remarry, and the case can still be converted into a divorce later if either person decides to.

What Can a Formal Legal Separation Address?

A formal separation judgment can address a variety of issues. Common ones include spousal maintenance., child support, and parenting arrangements. The spouses may also reach an agreement about property, debts, the marital home, and responsibility for bills. However, unlike in a divorce, the court cannot value or divide property in a legal separation case unless the spouses have reached an agreement and ask the court to approve it. 

Separation Agreements Without Going to Court

Some couples choose to draft a private separation agreement instead of filing a formal legal separation case. This can address similar issues to a legal separation. However, it typically isn't as easily enforced through the court system unless it's incorporated into a court order. If one spouse later stops following the agreement, the other may have limited options for enforcing it without first going through a formal legal process.

When Does It Make Sense to Formalize a Separation in Illinois?

Informal separations often work well for couples who merely need space and not enforceable financial terms. Formalizing a separation may be a good option if:

• One spouse needs court-ordered support while living apart

• The couple wants to stay married for religious, personal, or possible insurance-related reasons but still needs clear financial terms

• There's disagreement about how bills, debts, or property should be handled during the separation

• One spouse is worried about the other spending down shared assets

Without a formal agreement or court order, there may be little to stop one spouse from making financial decisions that affect both people.

What Happens If We Decide to Divorce After a Legal Separation?

A legal separation doesn't stop either spouse from filing for divorce later. If that happens, maintenance is generally decided again unless the separation agreement provides for permanent, non-modifiable maintenance. However, a property settlement agreement incorporated into the legal separation judgment is final and cannot be modified. Child support and parenting terms may be changed if the legal requirements for modification are met.

It’s best to have someone review the terms of your separation agreement before you sign, especially if you are considering making them permanent.

Call Our Wheaton, IL Separation Attorneys Today

Whether a couple needs a legal separation is highly dependent on their specific circumstances. If they do decide on a formal separation, the terms of that separation may have a big impact on later divorce terms.

Our Hinsdale family lawyers work hard to help settle these issues efficiently and cost-effectively. If a fair resolution isn't possible outside of court, we're prepared to take your case to trial. We regularly represent business owners, physicians, attorneys, judges, and other professionals working through complex family law issues. Every client also gets direct access to Attorney Roberts's cell phone number and email address for their case.

If you have questions about your separation, call Roberts PC at 630-668-4211 to schedule a free consultation.