It happens all of the time. One of the parties in a marriage wants to separate, but the other party will not agree to move out. Potential clients often ask if there is anything they can do, and it completely depends on the circumstances.
Here are a few scenarios for when a spouse won’t leave the house despite the fact that you agreed to separate, and what you can do to move forward.
Scenario 1: When There Is Domestic Violence
First and foremost, if you are in a violent situation, you need to come up with a plan to leave the situation in a safe manner. Sometimes that means filing for an Order of Protection and staying out of the house until your spouse is served by the sheriff. Often times in an order of protection, the Court will enter an the Order ex-parte (without notice to the other party). This happens when reasonable notice to the other side would cause further risk of harm to the person seeking the order protecting them. You can be granted what is called “exclusive possession” of your residence; of your pets; your property can be listed in the order, as well as your children. Spouses can be ordered to stay away from children’s schools and daycare facilities and they can even be prohibited from accessing the children’s school and medical records. We often coordinate with our clients how to handle an order of protection from start to finish, down to planning where they will stay while waiting for their spouse to be served. We help them provide copies of the order to their children’s school and daycare centers and we do whatever we can to keep them safe. This is one of the more common ways someone could be excluded from a marital residence. However, it is reserved only for truly abusive situations and is not to be abused as a method to simply evict someone from the house.
Scenario 2: When There Is no “Violence” or “Abuse”, but Mentally, They Are Causing You Harm by Being in the Same House.
In these scenarios, we can petition for what is called “exclusive possession” of the marital residence. This means that one person has a right to occupy the home during the pendency of the litigation, and the other person is excluded. This means the occupant can change the locks, put up security cameras without giving the other party access, change the alarm password or install an alarm system, etc. The non-occupying spouse cannot be in or at the home without a court order. This situation is reserved for scenarios where the parties absolutely cannot live in the same home, but generally, there isn’t any abuse or violence. It causes mental anguish and harm for the parties to be together in the same house, both to one or both of the parties as well as toothier children. It might be constant bickering. It might be that one party comes and goes at all hours of the night and you never know when they will come back. It could be that one person is making it very difficult for the other party to enjoy peace in their own home. It could also be a combination of any of the above factors. It is not as devastating as an order of protection, and the parties can generally still converse with each other in this situation, they just cannot live under the same roof.
Scenario 3: When They Are Trying to Live in the Same House “for the Kids” but it Is a Nightmare.
In this situation, maybe the parents get along well enough but need a break from each other and cannot live together any longer. In these scenarios, we might do an agreed order to restrict access to certain parts of the home. For example, maybe spouse 1 is allowed to exclusively use the primary bedroom and bathroom, and maybe spouse 2 is confined to the basement for sleeping, but the common areas are for everyone. This way, the parties don’t share a room anymore.
“Nesting” While the Divorce is Pending
In some cases, the parties may agree to do what’s called “nesting” while their divorce is pending. In this scenario, one party may rent an apartment and the party who does not have parenting time with the minor children stays in the apartment. When their parenting time starts, the party ending their parenting time goes to the apartment and the other parent comes back into the house. The parties do this on a schedule based upon who has time with the kids, and the parent who has their time with the kids always exercises it in the house. The kids never go to the apartment. This is a great way to keep the children in their home and comfortable, while the parents never have to live together. This presumes, however, that the parties can act like adults and that they will not bicker or take issue with someone disrupting their stuff when they are out of the house, or out of the apartment, that they won’t fight about the cleanliness of the different living locations, that they won’t fight about bringing significant others to the apartment, etc. It takes parents who can truly co-parent for the benefit of their children to work out this arrangement. Rarely is it used long-term, but it is not completely unheard of. Typically it is used during the pendency of the case.
If you or your spouse contemplating divorce, or you need help with a child support or child custody issue in Illinois, please visit our Chicago Divorce Attorney services page to learn more how we can help you and your family more forward.
Our Divorce Attorneys Can Help You
The key to figuring out what is best for your family is going to involve planning and knowing your legal options. We often plan departures from a marital living situation for our clients and we are happy to provide guidance and insight!