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Which Spouse Can Remain in the Family Home During an Illinois Divorce?

Posted on in Divorce

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When a married couple decides to divorce, one of the most pressing concerns often involves the family home. If you are a homeowner and you are considering divorce, you may wonder what Illinois law says about who gets to continue living in the family home and who must find another place to live during the divorce proceedings. As with most family law concerns, the answers to these questions will vary dramatically depending on the circumstances of the case. However, there are some situations in which a spouse may be ordered to vacate the family home.

Negotiating an Agreement With Your Spouse

The divorce process can last months or possibly years depending on the circumstances. If you are like most divorcing spouses, you probably do not want to continue living in the same home as your soon-to-be ex-spouse during the divorce proceedings. In this situation, the easiest solution is for you and your spouse to negotiate an agreement regarding who will stay in the family home during the divorce process and who will move out. You will also need to decide how to pay for the new accommodations. In some cases, these issues may have been resolved ahead of time through a prenuptial agreement or a postnuptial agreement

If you and your spouse struggle to communicate effectively, you may want to address these concerns through your respective attorneys. The agreement you reach about temporary living accommodations during the divorce may not have any bearing on who retains ownership of the home after the divorce is finalized and the division of property has been determined.

Filing a Motion for Exclusive Possession of the Residence

There are some situations in which a spouse has the right to evict the other spouse from the family home. According to Illinois law, marital property is any property that was acquired during the marriage by either spouse with the exception of certain gifts and inheritances. Nonmarital property is property acquired by either spouse before the marriage took place. If you owned your home before you got married and your spouse has not been added to the title and deed, you may have the exclusive right to continue living there during the divorce. However, you cannot simply tell your spouse to leave and then change the locks. You will need to file a motion for “exclusive possession of the residence” with the court in order to gain the right to evict your spouse. Illinois courts typically place the needs of any children before either spouse’s wishes when it comes to granting exclusive possession to either spouse.

Situations Involving Domestic Violence

When a family home is considered marital property, both spouses have the right to live there, even during a divorce. However, this is not necessarily the case in situations involving domestic violence. If you can prove to the court that living together will jeopardize your safety or your children’s, you may be granted exclusive possession of the home and the other spouse will have to move out. 

If you are in a situation in which you fear for your immediate safety or the safety of your children, filing a motion for exclusive possession of the home may not be your best option. The better route may be to request an order of protection through the court. A protective order can be customized for your unique situation. It may require your spouse to vacate the home, stay a certain distance away from you and/or your children, or contain other provisions.  

Contact a Cook County Divorce Lawyer

If you are considering divorce, you should know that there are many different factors that may affect which spouse has the right to continue living in the home until the divorce is final. For help with filing a motion for exclusive possession of the home, obtaining a protection order, and more, contact Botti Marinaccio, LTD. Schedule a confidential consultation with one of our experienced Western Springs divorce attorneys by calling our office today at 630-575-8585.



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Botti Marinaccio, LTD.


2015 Spring Road, Oak Brook, IL 60523

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