After an Illinois couple decides to make the difficult decision to end their marriage, one spouse will often move out of the marital home. However, it’s not always easy to decide which spouse will be packing their bags.
A common question asked to family law attorneys is whether it is possible to force a spouse to move out of the marital home. It is possible to force a spouse out of the marital home under Illinois law — but only in two specific situations.
The first situation involves having the spouse temporarily evicted under the Illinois Marriage and Dissolution of Marriage Act. A spouse can petition the court for exclusive possession of the home under the IMDMA if she can show that the physical or mental health or well-being of herself or the children is being “jeopardized” by the other spouse remaining in the home.
- In 2012, an Illinois appellate court helped clarify the standard for granting a spouse exclusive possession of the home under the IMDMA. The court held that the word “jeopardized” refers to peril, hazard or danger instead of just stress or unhappiness.
The second situation involves obtaining an order for protection under the Illinois Domestic Violence Act. An order for protection requires the petitioner to show harassment or threat of future abuse on behalf of the other spouse. As part of the order for protection, the petitioning spouse will usually also be awarded temporary exclusive possession of the marital home so long as the court finds that the risk of harm to the petitioner outweighs the hardship the other spouse would sustain in leaving the home.
- Many believe that it is easier to have a spouse temporarily removed from the marital home under the IDVA compared to the IMDMA — especially after the 2012 ruling mentioned above — because there is a presumption under the IDVA that the risk to the spouse seeking the OFP outweighs the hardship that the other spouse will have to go through to find a new place to live.
Note: A temporary eviction order has no effect on which spouse will ultimately receive the marital home through the property division portion of the divorce.