Divorce And Nesting In Illiinois

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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Nesting And Divorce In Illinois

Divorce And Nesting In Illiinois

Nesting” is the idea that, after a separation or a divorce, instead of the kids going between Mom and Dad’s house, the Mom and Dad alternately go to the house where the kids stay all of the time. Is nesting allowed in an Illinois divorce? Is nesting even recommended in an Illinois divorce?

Why Do People Consider Nesting During And After Divorce? 

Divorce is a big change. People are afraid of change. So, nesting is seen as a way to retain the old normalcy for the sake of the children.  With nesting, children keep their rooms, their toys, their neighborhood friends.  The only thing that changes is that the parents will parent separately and on different days.

So, nesting is not, technically, living together after divorce (but it kind of is)

Usually, nesting is a temporary arrangement that is only observed during the beginning separation and divorce process. Nesting is a way to slowly transition the children into the new, separate routines of post-divorce life. 

Nesting is also usually temporary because one or both of the parents can’t afford to rent a house with sufficient sleeping arrangements for all of the children. Parents just stay with relatives or friends on the days they don’t exercise parenting time.

How Do You Create A Nesting Agreement In Illinois?

Obviously, nesting is something you must do by agreement.  You can’t force nesting on one party if they do not agree to nest.

If the parties have agreed to nesting during the pendency of the divorce before the divorce is finalized, the parties can enter into a temporary order outlining the schedule each parent has with the children in the marital home.

Temporary orders are temporary.  You can change them or abandon them at any time. A temporary order “may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)

Legally, a temporary order should not color a judge’s final decision as to custody.  A temporary order “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;” 750 ILCS 5/501(d)(1)

But, realistically, the fact that you lived under a temporary agreed order (either successfully or unsuccessfully) is going to be considered by the court on some level.

Finally, all temporary orders expire when the final custody orders are entered. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

If nesting is not just for a few months, the nesting arrangement is going to have to be included in a final proposed parenting plan.

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 602.10(a)

Again, the two proposed parenting plans are going to have to look very similar for a judge to enter a parenting plan that includes a nesting arrangement.

If you are even slightly apart on the details, you will have to attend mandatory mediation to determine how this nesting arrangement will function exactly.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.” 750 ILCS 602.10(c)

If a divorcing couple is getting along so well that they can jointly create a plan to “nest” with their children…then why are they even divorcing? 

If I sound skeptical that nesting can ever truly be incorporated into a final Allocation of Parenting Time And Parenting Responsibilities, it is because I am completely skeptical.

I have practiced family law for 15 years in two states. I have divorced well over a thousand people.  Not one of those couples agreed to a final parenting plan that incorporated nesting.

There are a lot of reasons why nesting never really happens after an Illinois divorce.

Reasons Why Nesting Never Works In A Divorce

  • The Shared Apartment

Most of the people who purport to do nesting propose that the divorced couple also share an apartment.  This apartment is where the parents will stay when they are not parenting. 

Is this shared apartment that much cheaper than just having two different homes? If you can’t afford to refinance or maintain the marital home on your own (with child support and maintenance) then you probably shouldn’t be trying to live there any longer.

The shared apartment concept is terrible on multiple different levels. 

Divorced people should want to be getting away from each other and not be swimming through each other’s filth on the days that they enjoy parenting time and the days they are free.

Finally, how can you possibly date someone when you’re sharing an apartment with your ex?  The fact that you share an apartment with your ex is the biggest red flag a date could imagine. The kind of person who would agree to go to “you and your ex’s apartment” is the biggest red flag that a divorced parent could imagine.

If you both get two apartments and share the mutual marital home I guess that resolves a lot of these issues…but it sounds like a colossal waste of money for two people to maintain 3 separate residences when they used to have just one home.

  • Spying While Nesting.

There is going to be spying if you share a home with your ex. Whether it’s going through mail or putting a recording device within the home…it will happen eventually.

Recording someone secretly, even in your own home is a Class 4 felony in Illinois. 720 ILCS 5/14-4. But don’t expect your ex-spouse or soon-to-be-ex-spouse to be researching criminal penalties as they record your every move in a jealous fury.

Worse than jealousy, a parent may be recording another parent in order to sabotage the recorded parent by taping their parenting time for use as future evidence.

These recordings (because they are known) will not be secret at all and therefore not a crime. 

God forbid, you actually did something bad on camera like hit a child. The corporal punishment will always look worse than the spying that discovered the bad behavior.

Even if you have nothing to hide, privacy has it’s own value.

  • Nesting Is Confusing To Kids

Nesting is weird.  Nesting does not say to your children that “mom and dad have moved onto another chapter of their lives.”

Kids need stability but kids also need to model healthy adults who can adapt to change effectively.  Divorce is not done in half-measures even for the sake of the children’s best interests

Nesting creates a lot of parent interaction.  This stimulates a lot of magical thinking on the part of the children that the parents will rekindle their relationship. 

What happens to boyfriends, girlfriends and new spouses? Can they come to the nesting house?  Who would ever get into a relationship with someone who is nesting with their ex-spouse?

  • Who Keeps The Equity Of The House If You’re Nesting In It?

Presumably, the nesting home is owned and not rented.  If so, it’s an asset and is effectively not divided because both parties continue to use it 50% of the time.

So, the parties remain financially entangled even longer if they are keeping a home together. Who determines how and when to finally sell the home

Even if one party buys the other party’s interest in the marital home or refinances, does the other parent pay rent for their 50% parenting time?  So, now you’re not only a nester, you’re also a pseudo-landlord.

What Is The Alternative To Nesting During An Illinois Divorce?

Getting one spouse out of the house when they don’t want to leave is difficult. You have to file a motion for exclusive possession of the marital home in order to evict a spouse from a marital home.

Motions for exclusive possession of a marital home occur “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” 750 ILCS 5/501(c-2)

Jeopardizing the physical or mental well-being of a spouse or child is a pretty high standard. It is so high that Illinois courts have preferred nesting arrangements to spousal evictions. In re Marriage of Levinson, 975 NE 2d 270 – Ill: Appellate Court, 1st Dist., 4th Div. 2012

So, the real solution is to move out of the marital home and ask the court for temporary parenting time with your children.

Nesting is a terrible idea.  There are a lot other ways to share parenting time and give your children the stability they need.  Please contact my Chicago, Illinois divorce firm to learn more about all the options your family can exercise during this new phase.