Many couples filing for divorce chose to remain living together while the divorce is pending. Sometimes couples remain living together for financial reasons, sometimes because they don’t want to be apart from the children, and sometimes because both parties are both too stubborn to move. However, in many of these cases a time comes when it is no longer in the parties’ best interests to remain living together. At that point, what happens? Who has to move during divorce proceeding?
Illinois Law Allows for a Temporary Remedy as to Has to Move During Divorce Proceeding
Section 501(c-2) of the Illinois Marriage and Dissolution of Marriage Act allows for a party to request the Court grant them “exclusive possession of the marital residence.” This is only a temporary remedy during the divorce proceeding and does not necessarily mean that the party remaining in the marital residence will be rewarded the marital residence in the divorce.
When a Motion for Exclusive Possession comes before the Court, the judge considers whether the couple occupying the same residence jeopardizes the physical or mental well-being of the parties or their children. The Court can only grant this remedy upon due notice and a full hearing unless the Court waives that requirement for good cause shown.
The Court’s Goal is to Preserve Status Quo for Children and Well Being of the Parties
That brings up the question of how the Court determines who has to leave? During the dissolution of marriage process, the Court attempts to maintain the “status quo.” If the parties have children, the Court will look at keeping the children in marital residence. Which means the Court will look at which parent was more responsible for getting the children ready for school, taking them to school, picking them up, helping with homework, and other issues related to the children.
The Court will also take into account what role each party played in disrupting the physical or mental well-being of the other party and disrupting the status quo. The Court also factors in financial considerations, such as who can afford to maintain the marital residence or who can afford to pay rent.
An Order of Protection, if Granted, Decides Who Has to Move During a pending Divorce
If either party has experienced physical violence or threats of physical violence, the Court can then grant an Order of Protection on an Emergency Basis. The Court can grant an Emergency Order of Protection without notice and hearing. However, once the Court grants the emergency, the other spouse must be notified and will receive a chance to be heard. The Court will then hold a hearing on whether to extend the Order of Protection and may extend it for up to two years. If an order of protection is entered, the party whom the Order is entered against will be forced to leave the marital residence.
So, Who Has to Move, Husband of Wife? The Court May Decide
Every dissolution of marriage case is different. If the parties can no longer live together and cannot agree on who will remain in the marital residence, the Court makes that determination.
If you are going through a divorce and where you need to address has to moves out during the pending divorce, feel free to contact our office today to schedule a confidential consultation. Our team of experienced and top rated family law and divorce attorneys in Chicago representing your interests during and after divorce.