Posted on April 12, 2020

Getting Divorced While Renting In Illinois

36 % of people nationwide rent their home instead of owning their home.  In Chicago, the percentage of renters is even higher at 51.5% of people being renters.  So, while we know houses get divided in a divorce what happens to renters while getting a divorce in Illinois?

Who Keeps The Rented House In An Illinois Divorce?

Divorce lawyers often hear the same questions like “who gets the house?” There are complicated considerations in any Illinois divorce that determines who gets what, but what happens when the item in question doesn’t really belong to the couple.  Who gets to stay in the rental house in an Illinois divorce?

The interest that allows a tenant to stay in a house is both a property interest and an obligation.  The lease allows the renters to stay in the house for a set amount of time but the lease also requires that the rent be paid to the landlord.

So, when two people are getting divorced and it’s presumed that the lease will surpass the length of the marriage (the divorce will be finalized before the lease expires) the parties must come to some kind of agreement as to who will stay in the house and remain responsible for the lease. 

If the parties do agree as to who will stay in the rental house and continue to pay the lease, their marital settlement agreement will state something like, “husband agrees to remain in the residence located at Y, and agrees to pay the ongoing rent towards that property and indemnifies and holds wife harmless therefrom.”

The landlord doesn’t need to know anything about a tenant’s divorce.  It’s none of their business.

The landlord can continue to collect the rent from whomever is responsible for the rent during this term of the lease.

Who Keeps The Rental Deposit In An Illinois Divorce?

Many landlords require a renter’s deposit in the amount of 1 month’s rent. The deposit is then returned to the tenant at the end of the rental period depending on whether the property sustained any significant damage. 

If the rented property did sustain some kind of damage, the landlord can account for that damage and its costs and reduce that amount from the tenant’s rental deposit. 

If the parties are divorced in advance of the return of the rental deposit, the parties’ marital settlement agreement must prescribe what will happen with the renter’s deposit refund.

Again, the landlord does not need know the divorce happened. The landlord does not need a copy of your divorce decree.  The only two parties that are bound by your divorce decree are the two spouses NOT the landlord.  If the landlord gives the renter’s deposit to the wrong spouse, the spouse is obligated by the terms of the marital settlement agreement to give that money to the correct spouse. 

Who Gets To Stay In The Rented House During A Divorce?

Most residential leases are for a period of one year.  If the divorce is ongoing when the lease expires and can be renewed (Illinois divorces can easily more than year’s time to be finalized), then the landlord will decide who will renew the lease to and under what conditions.  This invariably means one person will have exclusive possession of the property and thereby ban the other person from being there.

While it is extremely cumbersome for a landlord to evict a tenant, it is pretty easy for a husband or wife to evict their spouse. Either party merely needs to file a Motion For Exclusive Possession Of The Marital Home and cite the following Illinois statute.

“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, by eviction from, or restoration of, the marital residence, until the final determination of the cause pursuant to the factors listed in Section 602.7 of this Act. No such order shall in any manner affect any estate in homestead property of either party. In entering orders under this subsection (c-2), the court shall balance hardships to the parties.” 750 ILCS 5/501(c)(2)

So the court considers, if one of the spouses is evicted, which spouse would suffer the least hardship by being evicted? The answer is almost always the same, 1) the party who is caring for the children the majority of the time or 2) the party with another place to go (whether it’s staying with relatives or renting a new place).

This eviction via divorce court doesn’t take complicated service or any of the other onerous requirements that Chicago’s Residential Landlord and Tenant Ordinance require like 5 day notices and the right to a trial by jury, etc.  You just file the motion and schedule the motion to be heard, the judge will decide and the spouse can be evicted the next day (the courts usually give the evicted a few days to remove their things)

Who Pays The Rent During An Illinois Divorce?

If both spouses are living in the same rented house, the recommendation shall be that the same person or persons pay the rent that had been paying the rent prior to the divorce.  It’s all marital money anyways and paying the rent is a marital purpose so it really doesn’t matter who pays. But, it’s usually easier for everyone if the status quo is kept in effect.

If one spouse moves out of the rented house, then things get complicated. 

Either spouse can then file a motion for temporary support to pay either the old rent or the new rent.

“Either party may petition or move for:

(1) temporary maintenance or temporary support of a child entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. One form of financial affidavit, as determined by the Supreme Court, shall be used statewide. The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501

So, the obligation to pay the rent is really an obligation to pay to maintenance or child support to the other party. 

The obligation to pay the rent may also be divided later when allocating marital debts (if rent is still owing).  But, asking for maintenance or child support to pay the rent is much faster and more effective than asking for payment of a mutual debt such as past-due rent because child support and maintenance hearings are handled in a summary fashion.

That is to say, the courts merely look at the two parties respective financial affidavits which include their respective rent obligations and determine who should contribute to what.  This actually happens without argument by either side if everyone agrees that the financial affidavits are factual and honest. 

Judges will schedule summary hearings very quickly and thus give out orders regarding summary hearings just as quickly. 

Can I Break My Lease In An Illinois Divorce?

When you’re renting a house or apartment for two people or more people and you, subsequently, get separated and file for divorce, you may find you need a lot less space.  You may need to break your lease so you that you can both move to more appropriate houses or apartments for single people.

Tenant’s rights laws are usually determined by local ordinance.  My law firm is located in Chicago so I can only speak to how to break a residential lease in Chicago.

In Chicago, you can break a lease and you don’t need a formal excuse like “I’m getting divorced.”  You do not need to tell your landlord why you are leaving the apartment or house and not continuing to pay rent until the expiration of the lease. You merely need to inform your landlord.

Most landlords will understand and allow you break your lease early and let you enter into a separate agreement to allow you to leave early with a small penalty and terms and conditions for your move out of the apartment or house.

If the landlord insists on holding you to the full term of the lease, the landlord must also try to rent out the apartment once you have left. If the landlord is collecting rent from a new tenant, that new rent is no longer owed by you, the original tenant.

You also have the right to sublease the apartment until your lease expires. The original lease will continue under the original tenant’s name until the lease’s expiration date. So, if the subtenant destroys the house or apartment, the first tenant will have to pay for that destruction. The original tenant, however, is still entitled to the portion of the security deposit owed when the lease expires.

Renting and Child Custody In Illinois

When you move during or after a divorce, the number one determinant of parenting time is your availability to the children.  This is almost always determined by how close you are to the children’s school. 

If you can rent a home or apartment near the children’s current school and that house or apartment has a room for each child, it will be very difficult to argue that you should not have at least 50% custody of the children. Just your decision to rent a house or apartment that accommodates the children’s education is a massive signal to the courts that you have prioritized the best interests of the children.

So, I advise my clients not to buy a house during or after a divorce (especially during as the house will be marital property) but rather to rent a home which provides them with the best argument to get maximal time with their children.  Once the parenting plan is entered, you can buy or move anywhere you want within 25 miles without seeking any permission from the children’s other parent or the courts. 

If you’re renting a house or apartment in Chicago, Illinois and would like to know what will happen with that rented house or apartment if you get divorced, please contact my office for a free consultation with an experienced Chicago divorce lawyer.

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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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