Posted on January 17, 2022

Exclusive Possession Of The Marital Home In An Illinois Divorce

Living with someone is hard. It’s even harder to live with someone while you’re in the process of divorcing them. Sooner or later, someone has to move out of the house. How do you get exclusive possession of the marital home in an Illinois divorce?

Temporary Exclusive Possession Of A Marital Home During An Illinois Divorce

During the pendency of an Illinois divorce either party can ask an Illinois divorce court to evict the other party from the home. There must be an allegation that the “physical or mental well-being of either spouse or his or her children is jeopardized” in order for an Illinois divorce court to evict a spouse in such a summary fashion.

“Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-2)

It does not matter whose mental or physical well-being is threatened by continued cohabitation. What matters is who can manage to live outside the home. When evicting someone on a temporary basis, “the court shall balance hardships to the parties.” 750 ILCS 5/501(c-2)

That means whoever would have the hardest time moving out…will likely not be the one to move out. Whomever is caring for the children the majority of the time is almost assured to get exclusive possession of the marital home.

“It is true an award of the marital home in favor of the custodial parent is normally preferred.” In re Marriage of Minear, 679 NE 2d 856 – Ill: Appellate Court, 4th Dist. 1997

It does not matter if the marital home is owned or leased exclusively by one party to the divorce.

“Property is characterized as marital or nonmarital only for the purposes of division on dissolution of marriage or legal separation. No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage. Operation of the term, “marital property” is not triggered until the time of dissolution. Thus, [a] trial court’s order of exclusive possession to [a spouse] pending outcome of the cause is irrelevant to the later disposition of the home as marital or nonmarital property.” In re Marriage of Hofstetter, 430 NE 2d 79 – Ill: Appellate Court, 1st Dist. 1981

An eviction under this statute is an injunction. An injunction forbids a party to a lawsuit from doing something. Like all injunctions, it does not last forever.

Temporary exclusive possession of a marital home “may be revoked or modified before final judgment” 750 ILCS 5/501(d)(2)

“Generally, with respect to preliminary injunctions, a court has inherent power during the pendency of the case before it to issue, modify, or vacate such injunctions. [Citations.] The circuit court possesses power to dissolve a preliminary injunction absent change of facts or law from the time of issuance to the time of dissolution, provided a sufficient basis exists to support dissolution. Whether or not to dissolve the injunction rests within the discretion of the court.” Patrick Media Group Inc. v. City of Chicago, 252 Ill. App. 3d 942, 946 (1993)

The most difficult part of the near inevitability of one party being granted exclusive possession of the marital home is waiting for the “full hearing” which could take months. In the meantime, your capacity to live together up until the hearing may be an argument for denying a motion for exclusive possession of the marital home. For this reason, motions for exclusive possession are often proceeded by Petitions For Orders Of Protection.

Exclusive Possession Of The Marital Home After An Order Of Protection In Illinois

An Illinois divorce court can award exclusive possession of a home when granting of an order of protection.

An Illinois divorce court may “[p]rohibit respondent from entering or remaining in any residence, household, or premises of the petitioner, including one owned or leased by respondent, if petitioner has a right to occupancy thereof.” 750 ILCS 60/214(b)(2)

Spouses have an equal right to be in the marital home regardless of who is on the title to the house.

“A party has a right to occupancy of a residence or household if it is solely or jointly owned or leased by that party [or] that party’s spouse” 750 ILCS 60/214(b)(2)(A)

After an order of protection is granted and when considering exclusive possession of the marital home, a court must balance the hardships with special care for the needs of any children.

“[T]he 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.” 750 ILCS 60/214(b)(2)(B)

But, the abuser is going to be presumed to be the one who must leave the marital home.

“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.” 750 ILCS 60/214(b)(2)(B)

The person who gets evicted from the marital home still has the right to return to the marital home to pick up his or her personal property.

“If an order of protection grants petitioner exclusive possession of the residence…then the court may allow respondent access to the residence to remove items of clothing and personal adornment used exclusively by respondent, medications, and other items as the court directs.” 750 ILCS 60/214(b)(3)(A)

The spouse barred from the home by an order of protection, that spouse has the right to ask the court reconsider its decision regarding the house within 14 days as they are, effectively, homeless.

“In the event that the emergency or interim order granted petitioner exclusive possession and the petition of respondent seeks to re-open or vacate that grant, the court shall set a date for hearing within 14 days on all issues relating to exclusive possession. Under no circumstances shall a court continue a hearing concerning exclusive possession beyond the 14th day, except by agreement of the parties. Other issues raised by the pleadings may be consolidated for the hearing if neither party nor the court objects.” 750 ILCS 60/224(d)

Temporary exclusive possession whether by motion or petition for order of protection shall not have an impact on any final allocation of the marital home.

“No such order shall in any manner affect any estate in homestead property of either party.” 750 ILCS 5/501(c-2)

“The grant of exclusive possession of the residence, household, or premises shall not affect title to real property” 750 ILCS 60/214(b)(2)

Final Exclusive Possession Of The Marital Home In An Illinois Divorce

An Illinois divorce is finalized by the entry of a Judgment for Dissolution of Marriage which orders the allocation of all marital and non-marital assets.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

Property is non-marital if it is “property acquired before the marriage” 750 ILCS 5/503(a)(6)

If someone owned the home before the marriage and the home remained in their name exclusively (including the mortgage) that home will remain with that person post-divorce.

An Illinois court will then “divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

[T]he relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children” 750 ILCS 5/503(d)(5)

So, an Illinois divorce judge may be inclined to award one party the entire marital home, especially if the parties share children. “Children need a home base.” In re Marriage of Swanson, 275 Ill. App. 3d 519, 524 (Ill. App. Ct. 1995)

Illinois divorce courts are allowed to award an entire home to a single party without an equal split of the net assets.

“The [Marriage and Dissolution of Marriage] Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

“[E]quitable division depends on more than merely an analysis of dollars and cents.” In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997, ¶ 22, 14 N.E.3d 524.

After the home is awarded to one party in a final judgment, that award may not be modified absent some unforeseen circumstances such as fraud.

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

The first step to sanity after a divorce is moving out or getting your spouse to move out. Contact my Chicago, Illinois family law firm to learn more what your options are regarding your marital home at the beginning of your divorce and when your divorce is finalized in an Illinois court of law.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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