Can I Obtain Exclusive Possession of the Marital Home During My Divorce?

 Posted on January 29, 2021 in Divorce

One of the biggest questions many couples face during divorce is which spouse will stay in the marital home, and which spouse will move out. Reaching an agreement about where each spouse will live during and after the divorce can be difficult, and sometimes it may seem nearly impossible. In some cases, a spouse may simply refuse to leave, and situations like these can become even more problematic if a spouse has a history of domestic violence. If you are planning to divorce, you may wonder if there is a way to force your spouse to move out. An order of protection and a motion for exclusive possession of the marital home are two legal avenues that may allow you to have your spouse removed from your shared home during your divorce.

Order of Protection for Victims of Domestic Violence

No one should have to live in fear in their own home. An order of protection (commonly known as a restraining order) is a legal court order that may require a spouse or other abusive individual to move out of a shared home. Protective orders in Illinois may also include provisions requiring the subject of the order, called the respondent, to stay a certain distance away from their spouse and/or their children, surrender firearms, cease communication with their spouse, and more. In order to get an order of protection in Illinois, you will typically be required to show that the respondent has abused you or another household member or caused you to fear for the safety of yourself, your children, or other family members. Abuse is defined in Illinois law as:

• Physical abuse, such as hitting or threatening someone with a weapon

• Harassment, such as repeatedly disturbing someone at work, constantly calling them, following them, or looking through their windows

• Interference with personal liberty, including controlling someone through threats and intimidation

• Intimidation of a dependent, such as abusing someone in front of their child

• Willful deprivation, such as withholding medication or food from a protected party

Motion for Exclusive Possession of the Marital Residence

A motion for exclusive possession of the marital residence is a motion you can file with the court to seek exclusive rights to your home during your divorce proceedings. In essence, this is a motion to have your spouse temporarily evicted. To be granted this type of motion, you may need to show that your physical or mental well-being or your child’s well-being will be in jeopardy if both spouses continue to share the home. “Jeopardy” is typically interpreted by Illinois courts to mean actual threat of danger.

Contact a Wheaton Order of Protection Lawyer

If you are planning to get a divorce, and you wish to obtain exclusive possession of your home, you may be able to force your spouse to move out through an order or protection or a motion for exclusive possession of the marital residence. The Stogsdill Law Firm, P.C. can help you determine your best options for addressing these issues, and we will provide you with representation in all legal proceedings during your case. For dependable legal support and assistance during your divorce, contact a DuPage County divorce attorney at 630-462-9500 for a confidential, personalized interview.

Sources:

https://www.ilga.gov/legislation/ilcs/documents/075000050K501.htm