When someone asks me “Who gets to live in the house during the divorce?” My first advice to any potential client is that you have to take care of yourself first.  Take care of your physical, mental and emotional health.  Most often this means moving out and away from your ex.  Nothing good will happen while you live with your ex.  I encourage clients to pay for a deposit on an apartment before a lawyer’s retainer.

The caveat to that is that you put your parenting time at risk by moving out of the marital residence.  This is because the children will almost never be ordered to move out with you.  The courts are strongly in favor of maintaining the status quo for the children’s sake while a divorce is proceeding.

So, you may need to ask the court to have your ex be evicted from the marital property. This is governed by 750 ILCS 501(c)(2)

“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.” 

“Accordingly…the court has the authority to grant exclusive possession if (1) a party has filed a verified petition seeking exclusive possession of the marital residence, and (2) the physical or mental well-being of either spouse or their children is jeopardized by the occupancy of the marital residence by both spouses.” In Re Marriage of Levinson, 2012 IL App (1st) 112567

Obviously, the determination of the court to evict a spouse hinges on the what the word “jeopardize” means exactly.  Given its plain and ordinary meaning, the word “jeopardize” means “to expose to danger or risk.” Merriam-Webster’s Collegiate Dictionary 627 (10th ed. 2000).

“Danger or risk” makes it sound like something physically dangerous or risky must happen but the courts have held that, “a situation need not rise to the level of physical violence before…relief may be granted. In this case, the evidence presented was sufficient to support a finding that the mental well-being of either (the other spouse) or the children was adversely affected by the occupancy of both spouses in the marital residence.” In re Marriage of Engst, 2014 IL App (4th) 131078.  So, mere arguing may be grounds for eviction if the arguing is effecting the parties’ or children to such a level that the court determines is sufficient to warrant eviction.

The alternative defense to an eviction is to ask that both parties be partially evicted so that one parent can be in the marital home for one period of time and the other parent be awarded residency in the marital home for the remaining period of time.  Typically, this becomes a one-week-one/one-week-off situation that is commonly referred to as “nesting.”  Nesting is where one parent becomes the on-duty parent while they’re in the marital residence.

Nesting may sound good in theory but, in my experience, it never ends well. After ending a relationship with your spouse, with nesting you are expected to share a home, personal items and never, ever have a new boyfriend or girlfriend in that shared space.

Please recall that evicting a spouse from the marital home is a temporary order.  Temporary orders are not dispositive to the final result of your divorce.  The evicted spouse will always still be entitled to an equitable portion of the marital value of the marital residence whether they are evicted or not.  The evicted spouse may even be awarded the marital residence after being evicted (this often happens If the other spouse cannot afford the mortgage after separation).

In lieu of eviction or living together, you can simply sell the house before the divorce is finalized.  The proceeds of the sale will be held by an attorney and distributed pursuant to the final marital settlement agreement.

Your attorney should have a long-term strategy for your divorce and be able to stay focused on the long term results no matter what temporary orders are entered. Contact my Chicago, Illinois law office to learn more about how you should handle your pending divorce.