What if My Spouse Refuses to Leave the Marital Home?

 Posted on March 12, 2014 in Family Law

Usually, when a couple decides to divorce, one of them leaves the marital home they previously shared. However, there are times when one spouse will refuse to leave the home despite the other’s demands. In that case, the spouse requesting that the other party leave may be forced to employ Illinois law in order to have their wishes granted.

 Illinois Law

Under certain circumstances, one spouse can force another to leave the marital home. Whether one spouse can force the other out of the marital home will depend on the specific facts of the situation, and if they can prove the necessary elements before the court. Under Illinois law, one spouse can secure exclusive possession of the marital home in two different ways.

 Illinois Marriage and Dissolution of Marriage Act

One way to secure possession of the marital home is to file a petition for exclusive possession under the Illinois Marriage and Dissolution of Marriage Act. The Court may grant the petition and temporarily evict one spouse from the marital home while divorce proceedings are pending, only if the petitioning spouse sufficiently demonstrates that their own physical or mental well-being or the well-being of the children is at risk, or “jeopardized” if the spouse in question stays in the home.

 A recent court case clarified the requirement that must be met in order to prove the jeopardization of well-being if the spouse remains in the home. In that case, the Court held that mere stress was not enough to meet the high standard the term "jeopardize" set within the law. Past cases had not found that stress alone justified the decision to order exclusive possession. The court defined "jeopardize" as having a plain meaning of peril, hazard, or danger, and not just unhappiness.

This order, if issued by the court, is temporary in nature. The parties will still likely have to address issues involving who will hold title to the property in the property division associated with their eventual divorce.

 Illinois Domestic Violence Act

The other possible way to force a spouse from the marital home is to file for a protective order under Illinois’ Domestic Violence Act. In order for this order to be issued by the Court, the spouse seeking it must demonstrate that they are a victim of harassment or have suffered abuse or a threat of future abuse from their spouse. The Court will then consider the threat of harm to the petitioner to outweigh the hardship presented to the spouse leaving the home.

Again, it is important to note that this order is also temporary and title issues will still need to be addressed during property division in the parties’ divorce.

 Divorce Attorneys

While it is difficult to obtain an order for exclusive possession, it is not impossible. An experienced divorce attorney can counsel you on your chances of having such an order granted, and improve your chances of the same. If you are considering divorce, feel free to contact the attorneys at Davi Law Group today. We serve clients in Chicago, Wheaton, and Warrenville.