Can I remove my spouse from the marital home before we are divorced?

Under current Illinois law, you may seek exclusive possession of the marital residence while your divorce case is still pending. However, historically, a person’s right to use his or her property has been fervently protected by law. As a result, a party seeking exclusive possession of the home must make a showing that the physical or mental well-being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses.

Additionally, exclusive possession of the home is a remedy available to victims of domestic violence who have sought an order of protection against their spouse. If your spouse is found to have committed abuse against you, you can be awarded the right to remain exclusively in the marital home while he or she is ordered to leave and stay away. If these circumstances are not at play, the only other option to gain exclusive possession is to work out an agreement with your spouse.

In both circumstances, the court retains the discretion to make the ultimate decision. The court will weigh the evidence presented to determine if the requisite criteria have been met and if so, will then determine if it is best to allow only one of the parties to reside in the marital residence pending the final outcome of the proceedings.

Generally, it is best that the parties to a divorce action separate prior to the end of the case. If there are children involved, it allows for an opportunity for them as well as the parties to transition into a new routine. It can also allow for an opportunity to delegate duties for budgeting and the payment of separate expenses before final decisions on property division and support are finalized.

Most divorcing couples separate naturally at some point during the proceedings. To limit costs, the best option is to try to work out an agreement with your spouse as to who will reside in the home during the proceedings, even if it is the ultimate intention to sell the property. As is often the case, litigating over temporary arrangements such as this will add to the overall litigation costs and can delay the ultimate resolution of the case. Exercising a bit of patience and planning will go a long way in making this transition smooth for both you and your children.

Julie Neubauer is a family lawyer with the Chicago law firm of Aronberg Goldgehn. She has a background as an advocate and counselor for survivors of domestic violence and dedicates her practice to matrimonial and family law.