Proofs Necessary For Legal Separation

PROOF NECESSARY FOR LEGAL SEPARATION

An action for legal separation is purely a support action. It does not terminate the marriage, and it does not adjudicate property rights unless the parties agree for that to occur. The only thing it does is permit a “wronged” spouse to obtain support, if needed, from the “wrong-doing” spouse. The jurisdiction for legal separation is the same as for dissolution of marriage. According to IMDMA §402(b), an action for legal separation “shall be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife” or in which the petitioner resides if the respondent cannot be found within the state.

As enacted in 1977, the original version of IMDMA §402 required the parties to live in separate residences at the time of filing the action. A 1982 amendment removed that specific language but provided instead that the remedy for reasonable support and maintenance existed “while they so live apart”, which appears to indicate the continued necessity for maintaining separate residences at all times for which is requested. In re Marriage of Eltrevoog, 92 Ill.2d 66, 440 N.E. 2d 840, 64 Ill. Dec. 936 (1982).

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