Can I get “Exclusive Possession of the Marital Residence”?
A frequently asked question is whether, while a divorce is pending, one spouse can force the other spouse to move out of the marital residence. There are two separate statutes which grant the court the authority to order the removal of a spouse during the divorce, the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101) and the Illinois Domestic Violence Act (750 ILCS 60/101).
Section 701 of the Illinois Marriage and Dissolution of Marriage Act allows a “temporary eviction” of a spouse during the divorce proceeding if “the physical or mental well being of either spouse or their children is jeopardized by the occupancy of both spouses.” The degree of proof is greater than that of the Domestic Violence Act.
Exclusive possession of the marital residence may be obtained more easily under the Domestic Violence Act. Under the Domestic Violence Act, a spouse must prove abuse or harassment, and that it is less of a hardship for the other spouse to relocate to another residence. An action under the Domestic Violence Act may be brought as either an independent action or as part of a pending divorce case.
During the pendency of most divorce cases, the atmosphere in the marital residence is tense and stressful for all parties. This is an insufficient basis under both statutes to require the removal of a spouse. Also, under both statutes, a spouse’s being required to move does not affect title to the real estate or who, at the end of the case, is awarded the marital residence.