Illinois
Legal Separation in Illinois: How It Works Under 750 ILCS 5/402
Independently fact-checked against primary sources (last audited October 8, 2026). · 5 primary sources cited on this page. How we verify our legal content
Yes. Illinois has a legal separation action in 750 ILCS 5/402, which gives a spouse who lives "separate and apart" a remedy "for reasonable support and maintenance while they so live apart." The court can award maintenance, but it cannot divide property unless the spouses agree, and either spouse can still file for divorce later.
Information last verified on 2026-10-08. This article has not been reviewed by a licensed lawyer.
Jurisdiction scope: This article covers legal separation under 750 ILCS 5/402, with the related rules in Sections 401, 403, 501, 503, 504, 505 and 601.2. It does not cover how maintenance amounts are calculated, divorce procedure in depth, inheritance rights, or other states' law. For divorce grounds and residency, see Illinois divorce laws.
What legal separation is in Illinois
Legal separation is a court action for support while a married couple lives apart. The core sentence of Section 402 reads:
"Any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they so live apart." 750 ILCS 5/402
A legal separation is not a divorce. Section 402(c) treats dissolution as a separate action that either spouse may still bring, and Section 503(a)(3) continues to refer to the parties as spouses after a judgment of legal separation. Section 402 itself does not spell out every legal effect of staying married, such as inheritance rights; this page does not cover those.
Who can file and where
The person filing must be living separate and apart from the other spouse (750 ILCS 5/402). Section 402 does not list fault grounds, and it does not set a minimum length of time apart.
The petition must be verified. Section 403(a) applies the verification requirement to a petition for dissolution or legal separation, and Section 403(a)(3) requires that petition to state that irreconcilable differences have caused the irretrievable breakdown of the marriage.
Venue and residency
Section 402(b) says where the case goes:
"Such action shall be brought in the circuit court of the county in which the petitioner or respondent resides or in which the parties last resided together as husband and wife." 750 ILCS 5/402(b)
Section 402 does not itself state a residency period, but Section 403(a)(3) requires a petition for legal separation, like one for dissolution, to state that the jurisdictional requirements of Section 401(a) have been met. Section 401(a) requires that one spouse was a resident of Illinois, or was stationed in Illinois while a member of the armed services, for the 90 days before the action began or before the finding is made.
What the court can order in a legal separation
The court's power in a legal separation is narrower than in a divorce, especially on property.
| Issue | What 750 ILCS 5 provides | Cite |
|---|---|---|
| Maintenance | The court applies the Section 504 factors when awarding maintenance in a legal separation judgment; Section 504(a) lists legal separation among the proceedings where maintenance may be awarded | 750 ILCS 5/402(b); 5/504(a) |
| Property division | The court may not value or allocate property unless the spouses agree | 750 ILCS 5/402(b)(1) |
| Property settlement agreement | The court may disapprove a requested agreement only if it finds it unconscionable | 750 ILCS 5/402(b)(2) |
| Finality of the agreement | An approved property agreement is final and non-modifiable | 750 ILCS 5/402(b)(3) |
| Temporary relief | Limited to Section 501(a)(1), which covers temporary maintenance and child support, and items (ii), (iii) and (iv) of Section 501(a)(2) | 750 ILCS 5/402(b) |
| Children | Legal separation is among the proceedings in which the court may order child support, and filing a petition for legal separation commences a proceeding to allocate parental responsibilities | 750 ILCS 5/505(a); 5/601.2(b)(1) |
Maintenance
Section 402(b) directs the court to the same maintenance factors it uses in divorce: "If the court deems it appropriate to enter a judgment for legal separation, the court shall consider the applicable factors in Section 504 in awarding maintenance." For how Section 504 works, see Illinois alimony laws.
Property only by agreement
This is the biggest practical difference from divorce. Section 402(b) states that "(1) the court may not value or allocate property in the absence of such an agreement; (2) the court may disapprove such an agreement only if it finds that the agreement is unconscionable; and (3) such an agreement is final and non-modifiable."
A lawyer licensed in Illinois can explain what a final, non-modifiable property agreement means for a later divorce.
Children
Section 402(b) expressly allows temporary relief under Section 501(a)(1), which includes temporary child support. Section 505(a) lists legal separation among the proceedings in which the court may order child support, and under Section 601.2(b)(1) filing a petition for legal separation commences a proceeding to allocate parental responsibilities. For the general rules, see Illinois child custody laws and Illinois child support laws.
Property acquired after the judgment
A legal separation judgment changes how later property is classified. Section 503(a)(3) lists "property acquired by a spouse after a judgment of legal separation" among the categories of non-marital property.
Converting a legal separation to a divorce
Either spouse can still seek a divorce after a legal separation. Section 402(c) provides:
"A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted." 750 ILCS 5/402(c)
If there is no agreed, non-modifiable permanent maintenance, the court decides temporary and permanent maintenance fresh (de novo) in the dissolution case (750 ILCS 5/402(c)).
Time spent apart can also count. Under Section 401(a-5), spouses who have lived separate and apart for a continuous period of at least six months immediately before the dissolution judgment create an irrebuttable presumption that irreconcilable differences exist.
Legal separation vs divorce in Illinois
| Issue | Legal separation | Divorce (dissolution) |
|---|---|---|
| Statute | 750 ILCS 5/402 | 750 ILCS 5/401 |
| Residency | Petition must state that the Section 401(a) requirements are met (Section 403(a)(3)) | 90 days of residence or military presence (Section 401(a)) |
| Maintenance | Section 504 factors apply | Section 504 factors apply |
| Property division | Only by the spouses' agreement (Section 402(b)) | Court divides marital property (Section 503) |
| Effect | Not a divorce; a later divorce is not barred (Section 402(c)) | Ends the marriage |
For divorce grounds, residency and the divorce process, see Illinois divorce laws.
Recent changes to the law
The ilga.gov text of Section 402 shows no amendment since Public Act 99-90, effective January 1, 2016. The maintenance section that Section 402 relies on, Section 504, was amended by Public Act 103-967, effective January 1, 2025.
Forms and official resources
Illinois Courts publishes statewide approved forms for divorce with and without children, child support, maintenance, parenting plans, financial affidavits, and appearances and responses (Illinois Courts approved divorce forms). That page does not list a legal separation form, and this page does not identify an official Illinois court self-help page on legal separation. The circuit court clerk in your county can tell you what the local court requires.
Disclaimer: This article provides general legal information about legal separation under Illinois law, 750 ILCS 5/402 and related sections, verified against the Illinois General Assembly's statute text on 2026-10-08. It is not legal advice. For advice about your situation, consult a lawyer licensed in Illinois or contact the circuit court clerk in your county.
Related
- Legal separation laws in every state
- Illinois divorce laws
- Illinois alimony laws
- Illinois child custody laws
- Illinois child support laws
Last updated: 2026-10-08.
Frequently Asked Questions
Does Illinois recognize legal separation?
Yes. Under 750 ILCS 5/402, a person living separate and apart from a spouse may seek reasonable support and maintenance while they live apart.
How long do you have to be separated in Illinois to file for legal separation?
Section 402 requires that you be living separate and apart, but it does not set a minimum period. A separate rule, Section 401(a-5), makes six continuous months apart before a divorce judgment an irrebuttable presumption of irreconcilable differences in a divorce case.
Does the court divide property in an Illinois legal separation?
Only if the spouses agree. Section 402(b)(1) bars the court from valuing or allocating property without an agreement, and an approved agreement is final and non-modifiable.
Can I get spousal support in a legal separation in Illinois?
Yes, maintenance is the main remedy. Section 402(b) directs the court to apply the Section 504 factors when it awards maintenance in a legal separation.
Can a legal separation be turned into a divorce in Illinois?
Yes. Section 402(c) says a legal separation does not bar a later dissolution action, and a dissolution judgment is granted if the moving spouse meets Section 401.
Is there a residency requirement for legal separation in Illinois?
Section 402 sets venue in the county where either spouse lives or where they last lived together. Section 403(a)(3) requires the legal separation petition to state that the Section 401(a) requirement has been met: one spouse resident in Illinois, or stationed here in the armed services, for 90 days.
Who owns property bought after a legal separation in Illinois?
Under 750 ILCS 5/503(a)(3), property a spouse acquires after a judgment of legal separation is non-marital property.
Updates
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
Illinois Compiled Statutes Chapter 750, Act 5 (Illinois Marriage and Dissolution of Marriage Act)
§ 402Legal SeparationIn force
(a) Any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they so live apart. (b) Such action shall be brought in the circuit court of the county in which the petitioner or respondent resides or in which the parties last resided together as husband and wife. Commencement of the action, temporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501. If the court deems it appropriate to enter a judgment for legal separation, the court shall consider the applicable factors in Section 504 in awarding maintenance.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at ilga.gov
§ 401Dissolution of marriageIn forcecited in 2 of our articles
(a) The court shall enter a judgment of dissolution of marriage when at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding: Irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. (a-5) If the parties live separate and apart for a continuous period of not less than 6 months immediately preceding the entry of the judgment dissolving the marriage, there is an irrebuttable presumption that the requirement of irreconcilable differences has been met.
Official text (excerpt) · last checked 2026-09-05 · Read the full text in our law library · Verify at ilga.gov
Also relied on in: Illinois Divorce Laws (2026): Grounds, Residency, and Process
§ 504MaintenanceIn forcecited in 4 of our articles
(a) Entitlement to maintenance. 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 or dissolution of the marriage or civil union by a court which lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for maintenance under Section 510 of this Act, or any proceeding authorized under Section 501 of this Act, the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at ilga.gov
Cited in 384 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Blum v. Koster (Illinois Supreme Court 2009, 235 Ill. 2d 21)“…in gross or for fixed or indefinite periods of time ***.” 750 ILCS 5/504(a) (West 2004). Section 504(a) provides…”
- In Re Marriage of Heroy (Appellate Court of Illinois 2008, 385 Ill. App. 3d 640)“…The maintenance is modifiable or will terminate pursuant to 750 ILCS 5/504.” The court further found that Donna was…”
- Jacobson v. Department of Public Aid (Illinois Supreme Court 1996, 171 Ill. 2d 314)“…5 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/504, 505 (West 1992)). The circuit court re…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Illinois Maintenance (Alimony) Laws: The Formula Explained (2026), Common Law Marriage in Illinois: Is It Recognized? (2026), Alimony by State: How Spousal Support Works (2026)
§ 503Disposition of property and debtsIn forcecited in 2 of our articles
(a) For purposes of this Act, "marital property" means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following, which is known as "non-marital property": (1) property acquired by gift, legacy or descent or property acquired in exchange for such property; (2) property acquired in exchange for property acquired before the marriage; (3) property acquired by a spouse after a judgment of legal separation; (4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement; (5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property; (6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics; (6.5) all property acquired by a spouse by the sole use of non-marital property as collateral…
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at ilga.gov
Cited in 596 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Blum v. Koster (Illinois Supreme Court 2009, 235 Ill. 2d 21)“…he Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(j) (West 2004)) does not apply to postd…”
- In Re Marriage of Schneider (Illinois Supreme Court 2005, 214 Ill. 2d 152)“…Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/503 (West 2000)), as well as the allocation…”
- Messenger v. Edgar (Illinois Supreme Court 1993, 157 Ill. 2d 162)“…g under the Act for the designation “non-marital property” (750 ILCS 5/503 (West 1992)). Although certain exceptio…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 501Temporary reliefIn force
In all proceedings under this Act, temporary relief shall be as follows: (a) Either party may petition or move for: (1) temporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. One form of financial affidavit, as determined by the Supreme Court, shall be used statewide. The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements. Unless the court otherwise directs, any affidavit or supporting documentary evidence submitted pursuant to this paragraph shall not be made part of the public record of the proceedings but shall be available to the court or an appellate court in which the proceedings are subject to review, to the parties, their attorneys, and such other persons as the court may direct. Upon motion of a party, a court may hold a hearing to determine whether and why there is a disparity between a party's sworn affidavit and the supporting documentation.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at ilga.gov
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Sources and References
- Illinois Compiled Statutes, 750 ILCS 5 (Illinois Marriage and Dissolution of Marriage Act), full text(www.ilga.gov).gov
- 750 ILCS 5, Part IV (Sections 401-413): residency, legal separation (Section 402) and pleadings (Section 403)(www.ilga.gov).gov
- 750 ILCS 5, Part V (Sections 501-510): temporary relief, property, maintenance and child support(www.ilga.gov).gov
- 750 ILCS 5, Part VI: allocation of parental responsibilities (Section 601.2)(www.ilga.gov).gov
- Illinois Courts: approved statewide divorce, child support and maintenance forms(www.illinoiscourts.gov).gov