Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), exclusive possession of the marital residence means that one spouse is subject to temporary eviction from the home while a divorce case is pending. Exclusive possession allows one spouse to go so far as to change the locks on the matrimonial home if he or she is so inclined. The standard to obtain exclusive possession is very strict, however, and a spouse may only seek temporary eviction when the physical or mental well-being of either spouse or their children is jeopardized by the occupancy of both spouses.
This may sound easy on its face when thinking about couples squaring off in a divorce – an emotionally stressful experience for everyone involved. Surely no one should be subject to this torment, least of all the kids, by forcing opposing sides to live under the same roof. However, courts have held that mere stress is not sufficient to meet the high standard of the term ‘jeopardize’. Instead, jeopardize is taken at its plain meaning of “peril, hazard or danger” rather than mere discontentment or unhappiness brought on by a spouse remaining in the home. Although it may not be the best environment for the kids or a spouse – perhaps resulting in sleepless nights and distracted days at school – it may not rise to the standard of ‘jeopardy’.
Some may be disheartened by the strict standard of exclusive possession because many things that happen in families go on behind closed doors. It may be difficult to articulate or prove just how hazardous and dangerous a situation is or may become. In cases where a spouse or the children are being harassed or threatened by a spouse, obtaining an Illinois Order of Protection under the Illinois Domestic Violence Act (IDVA) may be a better option. Under the IDVA, the court will award temporary exclusive possession of the marital home if the threat to the petitioner outweighs the hardship to the other spouse. Seeking exclusive possession under the IDVA may be more easily achieved when compared to the IMDMA and perhaps the only recourse when acts of domestic violence are insidious.
In situations where the physical and mental health or well-being of a spouse or children is in jeopardy, it is certainly worth fighting for exclusive possession of the home under the Illinois Marriage and Dissolution of Marriage Act. Other times, it may that an Illinois Orders or Protection (think: restraining order) is the best approach. Orders of Protection not only grant exclusive possession or the marital residence, but can also order someone to stay away from their spouse or children at places such as school or work. Orders of Protection can provide for the allocation of parenting time and child support, order a spouse to attend counseling, and more. If you are seeking exclusive possession of the marital residence in an Illinois divorce, contact the Illinois family law attorneys of Schlesinger & Strauss for assistance today at 847-680-4970.
