In Illinois, there is not a specific “lock changing law” when it comes to divorce or any other domestic relations matter. But effectively, you are evicting your spouse from the marital home when you change the locks.
If you and your spouse are co-owners of the property or co-signers of the lease then you both have equal rights to enter the property as you please and the other person can’t bar you from entrance. The right to bar a co-owner or co-tenant from a property must be granted by the court. This right to bar a co-owner or co-tenant is called, “exclusive possession”
Practically, the right or ability to change the locks depends on a few factors which I will cover below.
If your spouse has not moved out…file a petition for an order of protection.
If your husband or wife has not moved out of the residence you cannot change the locks. The only way you can get them out of the house is via an order of protection.
An order of protection can “grant…exclusive possession of [the] residence. Prohibit [the other person] from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by [the other person], if [you have] a right to occupancy thereof.” 750 ILCS 60/214(b)(2)
This does not have an effect on who ultimately owns the property at the end of the divorce, though. “The grant of exclusive possession of the residence, household, or premises shall not affect title to real property, nor shall the court be limited by the standard set forth in Section 701 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 60/214(b)(2)
Courts don’t just grant exclusive possession willy nilly. “If Petitioner and Respondent each have the right to occupancy of a residence or household, the court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent’s care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner’s care resulting from continued exposure to the risk of abuse (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse). When determining the balance of hardships, the court shall also take into account the accessibility of the residence or household. Hardships need not be balanced if respondent does not have a right to occupancy.” 750 ILCS 60/214(b)(2)(b)
You’ll see the court laying out a hardship test. Just because your spouse is annoying you doesn’t mean your spouse should be homeless. But, if your spouse is putting you in danger then his or her being temporarily homeless isn’t that big of a deal in comparison to the danger.
In my experience, the court almost always believes the accuser. Just imagine if the judge dismissed 99 frivolous cases and dismissed one serious case that resulted in abuse. Which case would you read about in the paper.
The statute even instructs the judge to believe the accuser’s story.
“The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence, showing that the hardships to respondent substantially outweigh the hardships to petitioner and any minor child or dependent adult in petitioner’s care. The court, on the request of petitioner or on its own motion, may order respondent to provide suitable, accessible, alternate housing for petitioner instead of excluding respondent from a mutual residence or household.” 750 ILCS 60/214(b)(2)(b)
So, yes, you can kick your spouse out upon almost any accusation but you may be required to pay for the hotel room until the divorce is over.
So, if an order of protection is granted, you can absolutely change the locks.
Stay Away Orders
Orders of protection are serious. They are asking the court to throw your spouse maybe the mother or father of your children in jail if they ring the doorbell. You do NOT have to go nuclear and ask for an order of protection to get your spouse to leave you alone.
Instead, you can ask for a stay away order. This has all the same power as an order of protection except when the police come over they do not arrest the violator they simply tell the violator to “knock it off and go home.”
This is actually good. You don’t need the drama to escalate by your spouse getting carried off to jail (especially if you have kids). Afterwards, you file a petition to hold your spouse in contempt of court for violating the order. This way, you are back in front of your divorce judge and you are controlling the narrative of your case. If your spouse had been arrested, they would have appeared in front of a criminal judge and the divorce judge would not have heard about the violation (until you told the divorce judge which just doesn’t have the same effect as a petition for contempt).
Your Spouse Has Moved Out.
Here’s where it gets really fuzzy. Your spouse has moved out but is still a co-owner or co-tenant of your place but they’ve moved out. Do they get to come and go as they please?
The answer is: Maybe, kind of.
If you change the locks and your spouse storms into court saying, “I can’t believe he/she changed the locks on my own house.” The judge’s reaction is going to depend on how long they’ve been out of the house.
In my experience, if it’s been less than 30 days and there’s no order for exclusive possession, you’re going to have let your spouse move back in.
If it’s been more than 30 days and they have a place to stay, the judge is going to want to avoid problems and tell them to stay away and let the locks stay changed.
This isn’t the law. It’s common sense.
Is there a better solution than changing the locks?
Yes. Tell your spouse “Come pick up all your stuff. Bring the police. They do this every day. Tell me when”
The police actually do this every day. They stand there in the doorway while the person who no longer lives in the marital residence picks up their things. The police make sure the other person doesn’t “steal” anything.
Even better, pack up all the other person’s stuff and have it ready to go at the front door. Call the police yourself for when they pick it up. If your spouse protests that something is missing, the police will say, “Wrap it up, Pal. Pick up what’s here and call your lawyer later.”
I know this whole process sounds unpleasant but it provides a lot of finality which should be your ultimate goal.
What if I’m the person that had the locks changed on and now I’m locked out?
Call the police. If the locks were changed a few days ago, the police will let you in and tell you all to call your lawyers.
Your lawyers can file an emergency petition to get you back into the house. The judges do not want dangerous confrontations and will encourage you to live elsewhere as this gets sorted out.
If you have children, the best interests of the children will really govern who lives where.
You can ask your spouse to pay for your place outside of the marital home while you wait for the divorce to be finalized but you may, in turn, be asked to pay for your half of the rent/mortgage of the marital home.
You will find that judges tend to make temporary rulings about the marital residence that encourage the parties to settle and resolve their differences. For example, a judge may order both parties to pay both rents/mortgages knowing the expense of supporting two households will provoke a settlement.
Can I change the locks back to the old locks?
No. This is technically impossible. A locksmith cannot make a lock that fits a key. It always works the other way around. However, you can get a judge to order your spouse to give you a key if your spouse is not granted exclusive possession of the marital property.
If you’re in the middle of a divorce and thinking about changing the locks to your house or have had the locks changed on you, contact my Chicago, Illinois Law Office to schedule a free consultation with an experienced lawyer.
If you have been granted exclusive possession of the marital property and need a locksmith to change the locks, I recommend Chicago Locksmiths, just 5 miles from my office. Map is below.
