Eviction from the Marital Home

It is difficult and sometimes impossible for a divorcing couple to live under the same roof.  However, Illinois divorce law only allows the court to evict a spouse from the marital home under certain conditions.  Unless a spouse voluntarily leaves the home, there is domestic violence, or living together jeopardizes the well-being of the spouses or children, the court may not order your spouse to live somewhere else while the divorce is pending.

When I start divorce proceedings, doesn’t my husband have to get out of the house?

No. This is a question I am frequently asked.  Usually there is one spouse who wants the divorce and the other spouse who does not want the divorce at the time the case is brought.  The spouse who is seeking the divorce will often want exclusive possession of the house — want their spouse leave the house.  On the other hand, the spouse who resists the divorce will often wish to stay in the house.  One of the issue in some divorce cases is simply the affordability of living separately while going through the cost of a divorce.  For this reason some couples choose to remain in the marital home for much or sometimes all of the divorce process.

My wife wants me to move out of the house.  Should I?

It should go without stating that this is a question you should talk to your lawyer about.  But I have often seen spouses move out of the house without talking first to their attorney.  If there are minor children and there is no agreement regarding how parenting time will be divided the standard advice from a divorce lawyer will usually be to wait until after there is an agreement regarding parenting time before moving out. On the other hand, the question is also whether living together during a divorce is something that could have unintended consequences and sometimes make the divorce more adversarial.

My spouse voluntarily left the house and is living someplace else. Can I change the locks?

Yes, but give it some thought before you do so. If you want to minimize antagonism in the divorce, changing the locks as soon as your spouse moves out might be viewed as an antagonistic move on your part. Despite your having changed the locks, your spouse still has a right to re-enter the house as long as he or she can do so peacefully (without breaking the law), unless there is a court order keeping him out of the house. If your spouse has moved out for an extended time, you should, however, be entitled to your own privacy.  In these situations, discuss with your lawyer whether or not it makes sense to change the locks.  And one newer option is to change the locks to a “smart lock” so that if it is necessary to essentially change the locks back, it can be done readily via a change of a code.

Aren’t there court orders available to evict a spouse from the house?

Yes, first an Order of Protection, can be obtained whether or not you have filed for divorce assuming there is abuse as defined in the Illinois Domestic Violence Act.  Second, a court can also order a temporary eviction from the marital residence as part of the divorce case, itself.

What about the eviction proceedings under the Illinois Divorce Act (and not under the Domestic Violence Act)?

Illinois divorce law provides in Section 501(c-2):

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, by eviction from, or restoration of, the marital residence, until the final determination of the cause pursuant to the factors listed in Section 602.7 of this Act. ***  In entering orders under this subsection (c-2), the court shall balance hardships to the parties.

Can you explain about balancing the hardships and what this means?

I will provide one example.  Assume that one person has non-marital property that is not rented or into which he or she could move.  This could be a factor in entering an order for exclusive possession (temporary eviction) during the divorce proceedings.

What does the reference to Section 602.7 mean?

This it not crystal clear.  Section 602.7 is the part of the current Illinois divorce law that involves allocation of parenting time. It is suggested that this language in the law effective since January 1, 2016 was poorly drafted and is ambiguous.

Is it “easier” to obtain exclusive possession of a house as part of relief within domestic violence proceedings?

If the physical well being of a spouse is jeopardized, it generally is easier and more effective to obtain eviction under an Order of Protection. The alternative statute in Illinois divorce law is generally designed for eviction where the mental well being of a spouse or the children is involved.  On the other hand, attempting to obtain an order of protection simply in order to evict a spouse from the house, can backfire if it is seen by the judge as an attempt to “game the system,” and get an advantage in terms of a potential contest regarding parenting time with the children.