Can you make your spouse leave the marital home in an Illinois divorce?

February 25, 2014 (Press-News.org) In many cases, one spouse voluntarily leaves the home when a couple decides to divorce. However, some spouses refuse to leave the home, even though the other spouse tries to force the issue. Illinois law does allow one spouse to make the other leave in certain cases, and an appellate court ruling handed down in June 2012 helped clarify when one spouse can make the other leave their home.

Illinois law about possessing the marital home

There are two ways that a person can force his or her spouse to leave the marital home in Illinois. A person can file a petition for exclusive possession of the home under the Illinois Marriage and Dissolution of Marriage Act. The court may temporarily evict a spouse from a home during divorce proceedings under the IMDMA if the other spouse shows that the physical or mental health or well-being of the spouse or children is "jeopardized" by the spouse remaining in the home.

The second way for a spouse to obtain possession of the marital home during divorce proceedings is to file for an order of protection under the Illinois Domestic Violence Act. To obtain an order of protection, a person must show harassment or threat of future abuse from his or her spouse. The court will also award temporary exclusive possession of the marital home if the risk of threat to the petitioner outweighs the hardships the other spouse has to go through by leaving the home. The court presumes that the risk of harm to the petitioner is less than the other spouse's hardships, so many believe that the IDVA more readily grants a spouse exclusive possession of the marital home than the IMDMA.

These temporary eviction orders do not affect the titling of the asset or which spouse will ultimately receive the home in the division of marital assets.

Clarifying the law

The 2012 case In re Marriage of Levinson clarified the standard that a spouse had to meet for exclusive possession of a marital home under the IMDMA. The trial court had awarded the wife exclusive possession of the family home after claiming that the bird-nesting arrangements the parents had, with each parent alternating living in the home with the children, was causing stress on her and the children because of the tension in the home, her lack of privacy and her husband's alleged unpredictable behavior. The custody evaluator in the case agreed that the children's stress levels were high, and that the environment was not in their best interests, but did not say that it was dangerous to them.

The husband appealed the exclusive possession order, and the appellate court reversed. The court held that mere stress was not sufficient to meet the high standard the term "jeopardize" set. The court noted that in past cases, stress had not been sufficient to justify an order for exclusive possession. The court thus placed "jeopardize" more in line with its plain meaning of peril, hazard or danger, rather than mere unhappiness.

Speak with an attorney

Illinois courts have set a high standard for issuing an exclusive possession order in divorce cases. Spouses seeking to make other spouses vacate the marital home should seek the assistance of a skilled divorce attorney in order to present their cases to the court most effectively. If you have questions about divorce, speak with a seasoned Illinois divorce lawyer who can advise you about your options given your specific circumstances.

Article provided by Schlesinger & Strauss, LLC
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