Am I Required to Live With My Spouse During Our Divorce?

 Posted on January 13, 2021 in Divorce

Wheaton attorney for divorce living arrangementsOne of the most commonly asked questions during a divorce is if you are required to live in the marital home with your spouse during the pending divorce case. The short answer is that it depends on the circumstances, and particularly whether there are minor children involved and any issues of support. Another commonly asked question is, “If I move out of the marital home, is it considered abandonment?” The answer to that question is also no as Illinois is a no-fault state that does not have grounds for divorce such as abandonment. However, there are some things to know about cohabitating with your current spouse during your divorce proceedings, how it can affect your children, and what you can do if things start to become contentious.

Some couples going through a divorce are amicable and are able to live under the same roof during divorce proceedings. Often times, couples will stay together in the marital home because they cannot afford to support two households or because they want to present as least disruption in their children’s lives as possible.  The courts generally prefer that the status quo is maintained during the pendency of the divorce, meaning that parties continue to operate their day to day living as they did prior to the filing.

However, sometimes that is not possible and couples cannot live together during a divorce case because their situation is so volatile that it negatively impacts their own or the children’s health and wellbeing. If this is the case, it’s best if the parties can agree that the arrangement is not ideal and determine a plan for parenting time for the children and how finances will be handled.  If, however, one spouse moves out of the marital home without an agreement on these issues, it can lead to litigation. In that case, the party remaining in the marital home would want to file a petition asking the court for temporary relief as it relates to support or household expenses. If the children have been removed from the home, the issue becomes even more imminent and the spouse who remains would likely file a petition asking the court to order the return of the children or at minimum to set a parenting schedule. Given that the court greatly prefers the status quo be maintained, it is not looked up favorably if one party unilaterally leaves the home with the children.

If one party moves out of the home, generally, the party that remains in the house wonders, “Can I change the locks?” The answer is yes. There is nothing in the Illinois Marriage and Dissolution of Marriage Act that provides that your home needs to be open to your soon to be ex-spouse at all times of the day.  That said, if the house is jointly titled, the other party could legally obtain a locksmith to enter the home and absent a court order, there is nothing that prevents them from doing so.  That said, it’s best that if there is an arrangement for separate living arrangements, that a court order provides the party with exclusive possession so that the other party cannot enter without express invitation to do so.  This provides a sense of privacy and security for the spouse remaining in the home. 

There are instances when the parties are not amicable whatsoever, and one party refuses to leave the house or to allow the other spouse to leave, despite the hostile living arrangements. In that case, there are two remedies a party can seek with the court, an Order of Protection or a Petition for Exclusive Possession of the Marital Residence. Unfortunately, the Illinois legislature has placed a high burden on the spouse trying to temporarily evict the other spouse from the home. The burden is especially strict because a party may only seek temporary eviction of the other spouse “in cases where the physical or mental wellbeing of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses.” 750 ILCS 5/701. This means that ordinary tension or arguing among divorcing couples is not enough to meet the extremely high standard for exclusive possession.  In order to remove a spouse, typically there must be a showing of physical violence or repeated or relentless harassment or verbal abuse toward a spouse or children.  Naming calling, although frowned upon, typically is not enough to remove a spouse from the residence, unless it occurs in front of the children, is accompanied by physical threats, or is so severe that it places the parent or children’s mental or emotional health at risk.

In very severe cases, an Order of Protection may be warranted, which can result in a spouse being prevented from entering or remaining at the marital residence.  In these cases, the burden is very high, as a violation of an Order of Protection can result in criminal charges. 

If you aren’t sure whether your situation warrants exclusive possession or you have any other questions regarding exclusive possession of the marital residence, please consult with one of our attorneys.

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