Who gets the house during the divorce proceedings?

house movingYou or your spouse may voluntarily move out of your shared residence after filing for divorce.  In the alternative, the two of you may be able to work out a suitable living arrangement while staying in the same home.  However, many times, one party may want to “kick” the other one out.  Under the law, there are two ways to do this: Section 214 of Illinois Domestic Violence Act (“IDVA”) and Section 701 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).

To forcibly remove a spouse from the marital home under Section 701 of the IMDMA, one must file a verified petition for exclusive possession.  The party seeking to evict must prove that the physical or mental well-being of either spouse or their children is in jeopardy before the court can order the removal of the other party.  This is a high burden to prove and only a handful of cases have been published that attempt to clarify the standard.

In re Marriage of Levinson, the Illinois Appellate Court equated the word “jeopardized” in Section 701 with: danger, hazard, or peril.  While physical violence, the court ruled, is not required to prove that the spouse or children are in jeopardy, one must show more than mere stress, confusion, arguing, and lack of stability. In re Marriage of Levinson, 2012 IL App (1st) 112567.

Under Section 214 of the IDVA, exclusive possession is a remedy to be included in an order or protection where the risk of future abuse outweighs the hardships to respondent in having to leave the residence.  The balance of hardships is presumed, pursuant to the statute, to weigh in favor of the petitioner, which also eases the burden.

The IMDMA and IDVA both seek to protect the well-being of spouses and children and mitigate any potential harm that may be caused to them throughout the divorce proceedings.  However, exclusive possession of a home is a remedy that has long-term implications affecting custody, support, and use and enjoyment of one’s property.  The courts must attempt to ensure that the remedy is not misused.

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