It is difficult and sometimes impossible for a divorcing couple to live under the same roof. Yet Illinois divorce law only allows the court to evict a spouse from the marital home under certain conditions.
In Illinois, the court cannot order your spouse to live somewhere other than the marital home unless:
- A spouse voluntarily leaves the home;
- There is domestic violence;
- Living together jeopardizes the well-being of the spouses or children.
When I start divorce proceedings, doesn’t my husband have to get out of the house?
No. Clients frequently ask this question at an initial interview. When a divorce starts, usually one spouse wants the divorce. The other generally doesn’t. The spouse who is seeking the divorce will often want exclusive possession of the house—want their spouse leave the house. The spouse who does not want the divorce will want to stay in the marital home. An obvious reason to stay in the house is that the couples’ financial means would be strained during the divorce process if they live separately. Some couples choose to remain in the marital home for much or sometimes all of the divorce process. Yet if affordable in most cases the parties agree to voluntarily separate.
My wife wants me to move out of the house. Should I?
Not without talking to your lawyer. Yet I have often seen spouses do so without first consulting with an attorney. If there are minor children and there is no agreement regarding how parenting time will be allocated, the standard divorce-lawyer advice is—wait until after there is an agreement regarding parenting time. On the other hand, living together during a divorce may present unintended consequences and make the divorce more adversarial.
My spouse voluntarily left the house and is living someplace else. Can I change the locks?
Yes, but give some thought first. Changing the locks as soon as your spouse moves out might be viewed as antagonistic. Despite your having changed the locks, your spouse still has a legal right to re-enter the house–unless an order grants exclusive possession 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, talk with your lawyer about whether and when to change the locks.
Consider the option of changing the locks to a “smart lock.” This allows you to provide the code to the lock when agreed upon personal property will be removed.
Aren’t there court orders available to evict a spouse from the house?
Yes, in two circumstances:
- An Order of Protection can be obtained even prior to a divorce filing. This requires a showing of abuse as defined in the Illinois Domestic Violence Act.
- The divorce court can enter an order granting temporary eviction from the house.
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 what balancing the hardships means?
Consider one example. Assume that one person has non-marital real estate that is not rented. The court could factor this into granting exclusive possession (temporary eviction) during the divorce proceedings.
What does the reference to Section 602.7 mean?
Section 602.7 is the part of the current Illinois divorce law that involves allocation of parenting time. It is part of a 112 word sentence and refers to the statutory factors in Illinois law in allocating parenting time. Thus, if there are minor children, the court considers that group of statutory factors.
Is it “easier” to obtain exclusive possession of a house as part of relief within a domestic violence case?
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. Yet attempting to obtain an order of protection simply to evict a spouse from the house can backfire. Caselaw criticizes attempts to use the Domestic Violence Act as a subterfuge to gain an advantage in cases involving parenting time with the children.