My spouse and I are divorcing and cannot live under the same roof. What are my options?

houseMany parties that are divorcing or separating choose to remain in the same household.  This could be for financial purposes, which it has been for the most part in recent years, or for a variety of other reasons.  Parties often want to know if anything can be done to remove another party from the marital home when a living situation has become unbearable.  It highly depends upon the parties’ circumstances as to what remedy they may seek in this situation.

In the event that the parties are not able to live together and that living together causes the parties, or one of the parties, or their children’s physical or mental well-being to be jeopardized, the Court can order the temporary eviction of one of the spouses to a new location, during the pendency of the case.  This is commonly referred to as exclusive possession of the marital residence. The Courts take this very seriously and will not even have a hearing on this issue unless notice has been properly served, or unless good cause is shown.

If abuse exists as defined under the Illinois Domestic Violence Act, between the parties or the children and a party, a party can also petition the Court for an Emergency Order of Protection.  These are usually given out in cases where there have been substantial instances of abuse of the children or the parties, sometimes involving the police.  The Courts, likewise, take this very seriously.  Within an Emergency Order of Protection, a Court can award one of the parties what essentially is exclusive possession of the marital home, until a full hearing can be heard on a plenary order of protection.  In these types of cases, the parties usually have more difficulties with each other than simply being uncomfortable being under the same roof.

Finally, as a reminder, once a party is served with a Summons and Petition in a dissolution case in Illinois, there is an automatic dissolution stay in full effect between the parties, indicating that no abuse, harassment and the like shall occur between the parties and/or a party and the minor children, during the pendency.

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