How Do Illinois Courts Determine Which Party Will Keep the Marital Home After a Divorce?

Exclusive Possession of the Marital Residence During a Divorce in Illinois

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 9, 2019

In this article we explain how one spouse can obtain exclusive possession of the marital residence during a divorce in Illinois.  We answer the question “how do Illinois courts determine which party will keep the marital home after a divorce?”  We also explain motions for exclusive possession of the marital residence and obtaining exclusive possession of the marital home through an order of protection.

How Do Illinois Courts Determine Which Party Will Keep the Marital Home After a Divorce?

At the conclusion of a divorce, the court will weigh a number of factors to determine which party will keep the marital residence if the parties cannot come to an agreement on the subject.  If there is a child involved, the parent who keeps the marital residence will generally be determined based on the best interests of the child.  If there is not a child involved the courts allocate the marital residence in the same way as other marital property.  You can learn more about this by reading our article: How is Property Divided in an Illinois Divorce?

If the parties to a divorce cannot agree on who will live in the marital residence while the divorce is ongoing, the parties can either continue to live together in the marital residence or one party can seek to have the other removed by court order in one of two ways: (1) a motion for exclusive possession of the marital residence; or (2) an order of protection.

Motions for Exclusive Possession of the Marital Residence Explained

A motion for exclusive possession of the marital residence seeks to have the the other party temporarily evicted from the marital residence by the court for the duration of the divorce.  Motions for exclusive possession are only granted when the movant can prove that the physical or mental well-being of either spouse or any of the children involved is jeopardized by both spouses continuing to occupy the marital residence.  This is a high bar to clear, because courts have interpreted the word “jeopardize” to mean actual danger rather than mere unhappiness or stress.  For this reason, an order of protection tends to be an easier method to obtain exclusive protection.  

Motions for exclusive possession of the residence do not impact which spouse will actually receive the marital home at the conclusion of the divorce.  

Obtaining Exclusive Possession of the Marital Residence Through an Order of Protection

Exclusive possession of the marital home is one remedy that a court can order when one party files a petition for an order of protection. A court will grant an order of protection in a divorce if the respondent has “abused’ the party filing the petition or any other household member.  

“Abuse” is a broad term that includes physical abuse, harassment, interference with personal liberty, intimidation of a dependent, or willful deprivation.  For much more on the definition of “abuse,” check out our article: What Constitutes “Abuse” for the Purpose of Illinois Orders of Protection?

Because the definition of “abuse” for the purposes of orders of protection goes beyond physical abuse, it is often easier to obtain exclusive possession of the marital home via a petition for an order of protection than via a motion for exclusive possession of the marital residence.  

To learn more about orders of protection, check out our article: Illinois Orders of Protection Explained.

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