If I could make a list of some of the most commonly asked questions, this would be it. Perhaps there is a law in other states, and there most certainly is in other countries, where you can be penalized for “abandoning” the marital home. We often get a lot of people who are in a domestic violence situation and fear leaving the marital home and seeking shelter because of this.
In Illinois, there is no such penalty for abandoning your home. However, as a custody lawyer, there are some precautions to take if you are seeking custody of your children. The Illinois Marriage and Dissolution of Marriage provides for what is called the “status quo”. The status quo is a latin term for a continuation of what has already been happening. For example, if your children if your children reside in the marital home, go to a residential school nearby, have friends nearby, etc., the court is likely to want to keep their lives as normal as possible until the issue of custody is adjudicated. That would be keeping the status quo. If you are changing the status quo, you will have to state why that would be in the minor children’s best interest.
As such, if you are seeking custody of your children, it is advisable that you not vacate the marital home until the issue of custody is decided. If you are not, however, seeking custody of your children or a 50/50 parenting schedule, then the court will not penalize you for leaving the marital home. However, keep in mind that you are still required to pay child support and maybe even contribute towards the marital expenses, if any, until a final adjudication on those issues as well.
There is also the domestic violence exception. If you are seeking custody of your children but are in a home where your spouse is violent towards you or your children, you may file a Petition for Order of Protection and either seek exclusive possession of the home, or request permission to vacate the home to an undisclosed location with your children.
In summary, however, unlike other states or countries, the fact that you are seeking to leave the marital home is not a factor that, by itself, will lead the Court to penalize. However, depending on the circumstances of your case, and especially if there are children involved, it may affect your custody and visitation rights. As a result, it is advisable that you speak to an attorney prior to making any such decisions.