Exclusive Possession Of The Marital Home In An Illinois Divorce

Living with someone is hard. It’s even harder to live with someone while you’re in the process of divorcing them. Sooner or later, someone has to move out of the house. How do you get exclusive possession of the marital home in an Illinois divorce?  Temporary Exclusive Possession Of A Marital Home During An Illinois Divorce During the pendency of an Illinois divorce either party can ask an Illinois divorce court to evict the other party from the home. There must be an allegation that the “physical or mental well-being of either spouse or his or her children is jeopardized” in order for an Illinois divorce court to evict a spouse in such a summary fashion. “Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2) The “physical or mental well-being of either spouse or his or her children” need not be “jeopardized” by violence alone.  “[A] situation need not rise to the level of physical violence before [the remedy of exclusive possession] may be granted…A lack of physical violence or abuse between the parties does not warrant reversal of the trial court’s decision [to grant exclusive possession] where the evidence otherwise shows a spouse or child’s mental wellbeing was being adversely affected.” In re Marriage of Engst, 2014 IL App (4th) 131078, ¶ 28.   It does not matter whose mental or physical well-being is threatened by continued cohabitation. What matters is who can manage to live outside the home. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2) That means whoever would have the hardest time moving out…will likely not be the one to move out. Whomever is caring for the children the majority of the time is almost assured to get exclusive possession of the marital home. “It is true an award of the marital home in favor of the custodial parent is normally preferred.” In re Marriage of […]

from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/exclusive-possession-of-the-marital-home-in-an-illinois-divorce/