When you live together, both parties have the right to remain in the house when a divorce action is filed. If your spouse tells you that you have to get out, consult your lawyer. If you are locked out of your house, you can call the police to be let back in. Only a judge signing an order can make you leave your home. But what if your spouse is making your life miserable while you are going through the divorce? Coming home at all hours of the night, waking you up when he comes home drunk, turning the air conditioner to 50 degrees so that you freeze to death? If your spouse is acting in a way that doesn’t allow you to enjoy your own home, you can request that the judge make your spouse move out.
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.
Many factors go into a judge’s decision about whether a spouse has to leave the home. And every case has its own unique facts. Please consult your attorney to determine if your case warrants a petition for removal.