One of my favorite judicial moments occurred during a hearing where a couple had continued living together for many months while their divorce was pending. When the judge learned they were still sharing the same home, he simply paused, raised an eyebrow, and said, “awkward.” The judge didn’t mean to be humorous; he was simply putting himself in the parties’ shoes and thinking through their situation. There was no motion before the court to rule on who would get the house, because the parties were coexisting in the residence with their daughter in relative peace and no one was being harmed by the living situation.
While “awkward” is often an understatement, the situation can become far more serious. When there is abuse—or a real risk of harm—remaining in the same home is not only uncomfortable, but it can also be unsafe. In those circumstances, an order of protection may be the appropriate legal remedy. Orders of protection obtained through the Illinois Domestic Violence Act (IDVA) should be pursued when necessary to prevent future abuse, not as a tool solely to gain possession of the house.
One of the most significant tools within an order of protection is the remedy of exclusive possession, which prohibits the respondent “from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by the respondent.” Under Illinois law, this remedy is available only when the petitioner has a right to occupancy of the home. In other words, the court must first determine that the petitioner has a legal or equitable basis to reside in the property before excluding the other party.
During the pendency of a divorce proceeding, a spouse can also petition the court for temporary exclusive possession under 750 ILCS 5/501(c-2) within the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Upon written motion, a judge may bar one spouse from the marital residence if 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.” This is a high burden to meet, and it can take time for the motion to be heard. The burden under the IMDMA is often higher than that of the IDVA; therefore, in cases involving abuse, it may be advantageous to seek relief through an order of protection.
Who lives where during a divorce is one of the hardest decisions to make—especially when children are involved. Unfortunately, it is often one of the very first decisions that must be addressed. There is no simple, one-size-fits-all answer, and Google will not solve this one. Whenever possible, it is wise to speak with an attorney before making any major decisions.
If you are facing divorce and have questions about who will remain in the marital home, you do not have to navigate that decision alone. Every situation is different, and the right strategy depends on your safety, your children, and your long-term goals. Contact Angela Evans Law to schedule a confidential consultation and discuss your options under Illinois law.