During the beginning stages of a divorce, couples are often still in the same household. As a result, one of the first issues is who should stay in the marital home. Oftentimes, the spouse who has been primarily taking care of the minor children will want to stay in the same home as the minor children. However, if the other spouse is fighting to be the parent with the majority parenting time, he or she may not want to vacate the home.
If you must force a Judge to formally grant you exclusive possession of the marital home, there are two ways to ask the Judge to force your spouse to leave the marital home. The first is through Section 701 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), and the other is through the Domestic Violence Act. If you choose to go through the Illinois Marriage and Dissolution of Marriage Act, you must prove that your spouse’s actions have been abusive or that the mental well being of the other spouse and or the minor children are in “jeopardy”. There has been a lot of debate as to the meaning of the term “jeopardy”. In In re the Marriage of Levinson, the Appellate Court determined that “jeopardy” meant “danger” or “peril” under the plain dictionary meaning. While physical violence is not required, one must show more than stress, arguing or unhappiness to prove jeopardy.
If you choose to seek exclusive possession through the Domestic Violence Act, you must show that your spouse has been harassing you or your children, or simply a threat of abuse, rather than “jeopardy”. As a result, it is easier to obtain exclusive possession as a remedy included in a Petition for Order of Protection than it is to seek exclusive possession pursuant to 701 of the IMDMA. In both cases the Petitioner must show the risk of future abuse outweighs the hardships to Respondent in having to leave the marital home. The main difference is that the Domestic Violence Act presumes the balance of hardship in favor of the Petitioner, thus shifting the burden onto the Respondent to overcome that presumption.
As a practical matter, despite the high standard to evict one’s spouse, judges seem to be sensitive to the fact that living in the same household can cause a lot of stress, and are likely to grant this motion on a lower standard. As a result, if you are under a very hostile situation at home, you should file your motion for exclusive possession even if it is not granted right away.