Divorce is a big step. Many couples will separate with the explicit option that they may, in fact, get back together. A non-permanent separation is called a trial separation. Some therapists will recommend trial separation in order to allow each member of the marriage think clearly about the future of the relationship. Trial separations, by their nature, may end in divorce. “Defendant suggested a trial separation, but her husband stated that if they were going to be separated, he would prefer a divorce.” Harris v. Harris, 360 NE 2d 113 – Ill: Appellate Court, 2nd Dist. 1977 What risks are there in engaging in a trial separation before a divorce? All Assets And Debts Acquired By Either Party Are Marital Until The Divorce Is Final In Illinois. Illinois divorce courts can only divide property that is classified as “marital”. Marital property is any property (or debt) which was acquired during the entire marriage. “‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a) “For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b) Without filing a petition for dissolution of marriage or a petition for legal separation, a trial separation has no impact on division of assets in an Illinois divorce. “To hold that the parties did not accrue marital property after the date of [mere] physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994 The assets you accumulate during a trial separation will be divided if you eventually get divorced. Likewise, the debts your spouse accumulates during the trial separation will be deemed marital assets and you will be responsible for a portion of those debts. Trial Separation May Constitute An Agreement To Waive Maintenance Every Illinois divorce court must consider maintenance (formerly known as alimony) “In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems […]
