Legal separations are rare, but are sometimes a strategy for couples to create two separate financial estates while maintaining marital benefits such as insurance, retirement benefits and school registration. Legal separations can also come in handy if a financial benefit can be realized, such as tax considerations, in a divorce that may drag out for many months.
This raises a question about whether a couple needs to reside separately to be considered separate and apart. California recently answered this question by passing a law that will allow couples to “live separately” under the same roof, thereby acknowledging the unhappy reality to which many estranged couples can attest: you can live together at the same address and still be living miles apart.
The state of California’s community-property law requires spouses to share their income and their jointly acquired property until they are found to be living “separate and apart,” which use to mean physical separation even if the couple was not on speaking terms. However, under the new law, a married couple’s date of separation will be defined as the date that a complete and final break in the marriage occurred, even if the couple continue living in the same home. The court will consider the stated intention of one or both spouses to end the marriage and whether their behavior toward each other shows they have broken up.
In Illinois, legal separations are available only to those couples living “separate and apart.” However, like California, living separate and apart doesn’t necessarily mean living at different addresses. Instead it means no longer living as spouses usually live. Generally speaking, if the judge determines that living separate and apart means they have to be living in separate households, so be it. If, on the other hand, a judge determines that a couple is living under the same roof devoid of conjugal visits, maintaining separate bedrooms, handling their own meals, laundry, banking etc. they may very well be seen as living separate and apart and therefore seen as “separated” despite living at the same address.
If you are considering a legal separation or divorce, contact the Law Offices of Ronald L. Bell for help.