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Splitting up without divorce: a legal-separation primer: legal separations allow couples with religious or other objections to divorce to determine support, allocate property, and otherwise create separate lives for themselves. This article reviews the basics, including some surprising quirks, of this little used but still available remedy.

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In most cases after the breakdown of a marriage, a full dissolution is the accepted and appropriate course. But if the parties are opposed to divorce for moral or religious reasons, or neither wants to remarry, or they simply want to formalize their separation before deciding whether to seek a full dissolution, legal separation is a way for them to go it alone.

This article attempts to explain the basics of this rarely used and little understood option, looking at how it is similar to and different from divorce in its impact on support, property division, taxes, and other important issues.

Legal separation v divorce

The main distinction between a legal separation and dissolution is the status of the marriage. With a legal separation, the parties are still legally married but are deemed to be living separate and apart. Thus, the couple is still considered married for some purposes (e.g., they may not marry another), but single for others (e.g., their tax filing status).

The other major distinction is that in a divorce, the court has the inherent authority both to determine support and divide property. In a legal separation, the court only has the authority to determine support, including both child support and maintenance. Indeed, determining support is historically the main purpose of legal separation. The court may only divide property if the parties consent. (1)

Grounds, venue, and jurisdiction

Grounds--the importance of "fault." Legal separations are provided for under section 402 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). (2) The statute states, "[a]ny person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they so live apart." (3) Illinois case law holds that in cases for legal separation, the parties need not be living in separate abodes at the time the petition is filed but must be living in separate abodes when the judgment for legal separation is granted. (4)

Section 402(a) provides that the petitioner must reside apart from their spouse "without fault." In order to be without fault, the petitioner cannot have

consented to the separation nor failed in a duty or committed "misconduct that materially contributed to a disruption of the marital relationship." (5)

Courts have interpreted "without fault" to mean that the petitioner need not be entirely blameless but still cannot have materially contributed to the disruption of the marital relationship. (6) The conduct that results in a separation need not be a sufficient basis for a divorce, because the measure of proof and grounds for a legal separation differ from a dissolution. (7)

Venue. The proper venue for bringing a legal separation action is the county in which the parties last resided together as husband and wife or where the respondent resides. If the respondent cannot be found within Illinois, the proceeding may be brought in the county in which the petitioner resides. (8) There are no minimal pleading requirements for a legal separation; however the requirements to be plead are probably similar to that of a petition for dissolution of marriage. (9)

A party seeking a legal separation shall also be entitled to temporary relief as they would under a normal dissolution, including injunctive relief and the rights to exclusive possession. (10) A legal separation does not bar either party from ultimately seeking a full dissolution of marriage later. If the moving party proves sufficient grounds for the dissolution, a judgment for dissolution will be granted. (11)

Separation agreements

When a separation is imminent, spouses may enter into an agreement making a fair and equitable provision for the support of each spouse and allocation of property without proceeding to trial. (12) If the parties do not separate after signing a separation agreement, the agreement will be invalid and unenforceable as against the public policy of the state. (13) Section 502 of the IMDMA is not applicable to legal separations, and thus attempts to limit future modifications of maintenance and the like will be disregarded. (14)

If the parties reconcile and resume living together after entering into a separation agreement, the separation agreement will become invalid. (15) However, in one case, the Illinois Supreme Court disregarded this rule and suggested that when parties reunite after entering into a separation agreement, the courts should look at the "implied intent" of the parties based on the particular circumstances in determining the continual validity of the agreement. (16) Along the same lines, if the parties reunite the courts could also interpret the separation agreement as a valid post nuptial agreement pursuant to 750 ILCS 5/503(a) (4). (17)

The legal separation agreement may also carry through to a future dissolution proceeding, especially if the agreement deals with topics such as property division. Such was the case in In re Marriage of Lipkin, where the fourth district determined that a legal separation agreement was binding upon the parties during the husband's later action to dissolve the marriage. (18) A party who accepts the benefits of a legal separation agreement, such as accepting maintenance payments, may be estopped from later challenging it. (19)

Custody

As part of the legal separation, the parties or court may determine issues related to the custody of minor children. (20) This includes determining who gets residential custody under section 602 of the IMDMA, (21) whether or not joint custody is appropriate, (22) and how much parenting time the noncustodial spouse gets. (23)

Support, third-party creditors, and the importance of fault

Historically, the main reason for a formal legal separation is to provide an economically disadvantaged petitioner spouse with the right to reasonable support, (24) including child support and/or maintenance. The amount of support should be the same that would have been awarded in a divorce. (25) Thus, the court calculates child support pursuant to section 505 of the IMDMA (26) and determines maintenance after considering the factors of section 504 of the IMDMA. (27)

But while the parties to a divorce can agree to make maintenance nonmodifiable, (28) that is not the case in a legal separation. The Illinois Supreme Court has held that section 502(f) of the IMDMA (29) applies only to dissolutions, not to legal separations. (30) Thus, maintenance and child support awards made pursuant to a legal separation are always modifiable as provided by section 510 of the IMDMA. (31)

A more interesting and difficult issue is the liability for debts and expenses incurred by one spouse after a legal separation. As long as support is being provided, the obligee spouse's release of debt obligations is valid. (32)

But while such a release between parties is effective, it does not apply to third parties. Under the Family Expense Act (33) a third party creditor is allowed to collect against one spouse for a "family expense" incurred by the other. (34) Because the legal separation does not terminate the marriage, the Family Expense Act arguably still applies. There is old case law suggesting that a separated couple does not qualify as a "family" for purposes of the statute, (35) but more recent cases suggest that even if the parties are separated at the time the expense is incurred, the expense may still be collectable. (36)

If the spouse incurring the expense is at fault for the separation, the other spouse may not be held liable for the debt. (37) However, if the spouse incurring the debt is not responsible for the separation, the other spouse may be held liable for the debt. It is the burden of the third party to show that the separation is not the fault of the debt-incurring spouse. (38)

Two cases are instructive, though they do not involve formal legal separations. In Abraham Lincoln Memorial Hospital Corp v Gordon, the fourth district recited a common law rule that a person who supplied necessaries to a wife who is separated from her spouse through no fault of her own has a right to recovery against the husband. (39) This rule was later called into question by the first district in In re Estate of McGloon. (40)

In McGloon, a wife filed a claim against her late husband's estate to recover amounts she expended on the necessities of her life from the time he abandoned her in 1946 until his death in 1987. The wife relied on the common law duty of a husband to support his wife.

In denying her claim, the appellate court stated that support obligations established by common law are no longer gender based. Instead, each spouse has an obligation to support the other. Further, the court opined, statutory support provisions require a demonstration of need by the would-be recipient. Since the wife failed to invoke any of the statutory remedies that would have allowed her to obtain her husband's support during his life, the court denied her requests for his support in his death. (41)

Unlike in a divorce, then, fault for the legal separation may be a critical issue when it comes to debts owed to third parties for family expenses. When you represent the respondent in a legal separation where debts for family expenses may be an issue, your best options - depending on your client's circumstances and relationship with his or her spouse--are to have the debts paid as part of the separation terms, prove the other party is at fault for the separation, or demonstrate to the third-party creditors that the separation was mutually agreeable.

If dealing with debt is an important and contentious issue, the respondent is probably best advised to seek a dissolution of marriage. Divorce would relieve the respondent of any liability for debts incurred by the former spouse after the divorce. (42)

Property division--the court's authority

As part of their legal separation, the parties may agree to make a division of their property. Unlike in dissolution cases, the courts have no inherent authority to award property in a legal separation, because the main purpose of legal separation is to provide a spouse with the right to support. (43)

An exception to this rule is when both parties place the issue before the court, either expressly or implicitly in their pleadings and the evidence they put forth at trial. (44) For example, the court may be granted authority to determine and divide property if one party files a petition for dissolution and the other side files a petition for legal separation but prays for the distribution of property as part of their petition for legal separation. (45) When the court is called upon to divide property, it will do so pursuant to section 503 of the IMDMA. (46)

An illustrative case is In re Marriage of Leff, where the husband filed a petition for dissolution and the wife filed a counterpetition for legal separation. The second district granted the wife's petition for legal separation, but in doing so the court distributed the parties' marital property. (47)

On appeal, the wife contended the court lacked authority to award property interests as part of the legal separation. In rejecting her claim, the appellate court cited cases in which the courts were deemed to have authority to divide property based on the parties having put the issue before the court. (48)

In Leff, the wife offered affirmative evidence at trial about the ownership of the marital residence and work she put into the home. She further testified about her health, debts owed, and the value of the husband's accounting practice. In closing arguments, both attorneys submitted a suggested distribution of the parties' property. (49) Based on these facts, the appellate found that the wife placed distribution of marital property before the court.

A note for separated parties who later seek a full dissolution--property acquired after the entry of a legal separation is deemed to be nonmarital. (50)

Tax considerations

As with most financial aspects of the breakdown of a marriage, taxes are an important consideration. Upon the entry of a judgment for legal separation, the parties may no longer file taxes as either "married joint" or "married separately." Rather, a member of the legally separated couple must file either as "single" or "head of household." (51) As in a divorce, the taxpayer's filing status is determined as of December 31 of the tax year. (52)

Maintenance payments made pursuant to a legal separation may be deductible by the payer and included as income of the payee, provided the requisite requirements under 26 USCA section 71 for the deductibility of maintenance are met. They are as follows: 1) the payments must be made from payer to payee 2) pursuant to a separation decree, and 3) the parties are living in separate households; also, the payments must 4) terminate upon death of payee, 5) not be made in a fixed amount for child support, and 6) not designated to be includible in gross income of payer; and 7) the parties must file separate tax returns.

The parties can also allocate the dependency exemptions in a legal separation, using the same rules that would apply in a dissolution. (53) As in divorce, the transfer of property incident to a legal separation should be a non-taxable event. (54)

Health insurance

Historically, an important reason for legal separation was to keep a spouse on a health insurance plan, though with the passage of COBRA there is often less need to do so. (55) Under COBRA, the entry of a legal separation decree is considered to be a qualifying event triggering the right to continuation of coverage. (56) COBRA, however, applies only to those employers with 20 or more employees. (57)

While the Illinois Spousal Continuation Law requires all employers who provide health insurance to provide a continuation policy, it only applies to divorced, not legally separated, spouses. (58) The statute specifically states that "[n]o policy of group accident or health insurance, nor any certificate thereunder shall be delivered or issued for delivery in this State after December 1, 1985, unless the policy provides for a continuation of the existing insurance benefits for an employee's spouse and dependent children who are insured under the provisions of that group policy or certificate thereunder, notwithstanding that the marriage is dissolved by judgment ...". (59) (emphasis added). The statute also goes on to refer to the "former spouse," thus further suggesting the statute only applies to divorced couples and not to couples merely legally separated.

Two other options should not be overlooked when determining how to handle health insurance in a legal separation. First, review the health insurance policy, which may allow coverage for a legally separated spouse without the need for a separate policy under COBRA.

Second, include in the support payments an amount sufficient for the uninsured spouse to purchase his or her own private or employer-provided policy. If the payments are properly allocated as maintenance, the tax benefit to the payor may make this option even more attractive.

Retirement plans

Retirement plans, including IRAs, 401(k)s and pensions, also may present challenges in a legal separation. A qualified domestic relations order (QDRO) may be entered as part of a legal separation property settlement. (60) Similarly, a QILDRO may be entered for any retirement system, pension fund, or other public employee retirement benefit plan that is maintained or established under any of Articles 2 through 18 of the Illinois Pension Code. (61)

Also consider whether to remove the spouses as beneficiaries of each other's retirement plans. To do so, the nonparticipant spouse will probably have to execute a waiver or some other documentation disavowing his or her interest.

Estate claims and waivers

The parties may agree to waive claims to one another's estates as part of the legal separation. (62) A mutual waiver will be sufficient consideration. (63)

However, be aware of the decision in In re Estate of Nakaerts. That court ruled that public policy dictates that a spouse may not waive his or her interest in the decedent's estate if there are minor children, reasoning that the surviving spouse should not be allowed to contract away the rights of the children in the estate of their parent. (64)

Nakaerts may be distinguishable on the basis that the parties there resumed living together and thus abrogated their separation agreement. Absent agreement of the parties, the court has no authority to order a waiver of an estate claim. (65)

Conclusion

While relatively few couples will choose legal separation, it is a viable alternative for certain clients under certain circumstances. A well-drafted legal separation agreement can allow the parties to provide for support and divide property without going forward with a full dissolution. It may be a little used tool in the family-law toolbox, but someday it could be just the one you need.

(1.) In re Marriage of Leff, 148 Ill App 3d 792, 797, 499 NE2d 1042, 1046 (2d D 1986).

(2.) 750 ILCS 5/402

(3.) 750 ILCS 5/402(a).

(4.) Smith v Aaron, Aaron, Schimberg & Hess, 112 Ill App 3d 653, 656, 445 NE2d 67, 69 (2d D 1983). (abrogated on other grounds).

(5.) Graham v Graham, 44 Ill App 3d 519, 525, 358 NE2d 308, 312 (5th D 1976).

(6.) Id.

(7.) Id.

(8.) 750 ILCS 5/402(b).

(9.) Sandra R. Murphy and Allison A. Fink, Pleadings Under the Illinois Marriage and Dissolution of Marriage Act, Family Law (Illinois) Preliminary Considerations in Dissolution Actions 2008 Edition, Illinois Institute for Continuing Legal Education, Ch 3, Section 148. See also 750 ILCS 5/402(b) "[commencement of the action ... shall be the same as in actions for dissolution of marriage."

(10.) Murphy and Fink, Pleadings at Ch 3 Section 150 (cited in note 9).

(11.) 750 ILCS 5/402(c).

(12.) In re Sutton, 136 Ill 2d 441, 448, 557 NE2d 869, 873 (1990).

(13.) Stenson v Stenson, 45 Ill App 3d 249, 252, 359 NE2d 787, 789 (1st D 1977).

(14.) Sutton at 448, 557 NE2d at 872 (1990).

(15.) Newman v Newman, 240 Ill App 193, 1926 WL 3792 (1st D 1926).

(16.) Purcell v Weasel, 12 Ill 2d 356, 359 146 NE2d 580, 581 (1957).

(17.) Stern v Stern, 105 Ill App 3d 805, 810, 434 NE2d 1164, 1168-69 (2d D 1982).

(18.) 163 Ill App 3d 1033, 1037, 517 NE2d 41, 44 (4th D 1987).

(19.) In re Marriage of Chroback, 349 Ill App 3d 894, 898, 811 NE2d 1248, 1253 (2d D 2004).

(20.) 750 ILCS 5/601(b)(1)(i).

(21.) 750 ILCS 5/602.

(22.) 750 ILCS 5/602.1.

(23.) 750 ILCS 5/607.

(24.) Graham at 524, 358 NE2d at 311.

(25.) Glover v Glover, 132 Ill App 2d 284, 290, 268 NE2d 218, 222 (5th D 1971).

(26.) 750 ILCS 5/505.

(27.) 750 ILCS 5/504.

(28.) 750 ILCS 5/502(f).

(29.) 750 ILCS 5/502(f).

(30.) Sutton at 448, 557 NE2d at 872.

(31.) 750 ILCS 5/510.

(32.) Robbins v Continental Nat Bk & Tr Co of Chicago, 324 Ill App 422, 438-39, 58 NE2d 254, 261 (1st D 1944).

(33.) 750 ILCS 65/15.

(34.) Id.

(35.) Schlesinger v Keifer, 30 Ill App 253, 1888 WL 2231 (1st D 1888).

(36.) St. Mary of Nazareth Hosp v Kuczaj, 174 Ill App 3d 268, 274, 528 NE2d 290, 294 (1st D 1988).

(37.) Berenson v Berenson, 34 Ill App 2d 376, 379, 181 NE2d 357, 358 (1st D 1962).

(38.) Abraham Lincoln Memorial Hospital Corp v Gordon, 111 Ill App 2d 179, 185, 249 NE2d 311, 314 (4th D 1969).

(39.) Id at 182, 249 NE2d at 313.

(40.) 191 Ill App 3d 968, 548 NE2d 438 (1st D 1989).

(41.) Id at 972, 548 NE2d at 441.

(42.) Proctor Hospital v Taylor, 279 Ill App 3d 624, 627 665 NE2d 872, 875 (3d D 1996).

(43.) Leff at 798, 499 NE2d at 1046.

(44.) Id at 800, 499 NE2d at 1047-48.

(45.) Boyd v Boyd, 58 Ill App 2d 1, 9-12, 207 NE2d 350, 353-55 (5th D 1965).

(46.) 750 ILCS 5/503.

(47.) Leff at 795, 499 NE 2d at 1044.

(48.) Id at 800, 499 NE 2d at 1047-48.

(49.) Id at 796-97, 499 NE 2d at 1045.

(50.) 750 ILCS 5/503(a)(3).

(51.) 26 USC [section] 2 and 26 USC [section] 7703.

(52.) 26 USC [section] 7703.

(53.) 26 USC [section] 152(e).

(54.) 26 USC [section] 1041(a); see also Treasury Regulation [section] 1041-1T(b).

(55.) Murphy and Fink, Pleadings at Ch 3, Section 150 (cited in Note 9).

(56.) 29 USC [section] 1163.

(57.) 29 USC [section] 1161.

(58.) 215 ILCS 5/367.2.

(59.) 215 ILCS 5/367.2(A).

(60.) 26 USC [section] 414 and 26 USC [section] 401(a)(13).

(61.) 40 ILCS 5/1-119(b)(1).

(62.) In re Trecker's Estate, 107 Ill App 2d 94, 100, 246 NE2d 56, 59 (1st D 1969).

(63.) Laleman v Crombez, 6 Ill 2d 194, 196, 127 NE2d 489, 490 (1955).

(64.) Matter of Nakaerts' Estate, 106 Ill App 3d 166, 168, 435 NE 2d 791, 794 (3d D 1982).

(65.) In re Spohr's Estate, 197 Ill App 348, 1916 WL 1736 (1st D 1916).

Roman J. Seckel <rjs@batavialaw.com> is an associate in the law firm of Drendel & Jansons Law Group in Batavia, where his practice centers on family law, small business operations, and general civil litigation.
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Title Annotation:Illinois
Author:Seckel, Roman J.
Publication:Illinois Bar Journal
Date:Aug 1, 2010
Words:3564
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