Who Gets to Stay in the House During a Divorce in Illinois?

Who Gets to Stay in the House During a Divorce in Illinois?

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Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
September 20, 2019

In this article, we answer the question, “who gets to live in the house during a divorce in Illinois?”  We discuss: 

  • Coming to an agreement on who will stay in the family home during a divorce;
  • If I owned my home prior to marriage, can I evict my spouse during a divorce?; and 
  • When can I kick my spouse out of the house when getting divorced?

While a divorce is ongoing, both parties have equal right to continue to reside in the marital home together.  This is usually a situation that neither party wants because of the interpersonal tensions associated with the divorce.  

Coming to an Agreement on Who Will Stay in the Family Home During a Divorce

The simplest way to resolve the situation is for the parties to work through their attorneys to come to an agreement as to who will reside in the family home, who will find other accommodations, and how the new accommodations will be paid for.  This agreement will not necessarily have any impact on who will ultimately receive the family home at the conclusion of the divorce.  

What Happens if the Parties to a Divorce Can’t Agree Who Will Live in the Family Home During the Divorce?

The default rule is that if the parties cannot agree who will stay in the family home during the divorce, the status quo will continue and neither party will have the right to kick the other party out.  There are, however, a few exceptions to this rule discussed below. 

If I Owned the Home Prior to Marriage, Can I Evict My Spouse During a Divorce?

If the family home was acquired during the marriage, it is considered community property regardless of which spouse holds the title.  However, if the home was owned by one of the spouses prior to the marriage and the other spouse was never added to the title, the party who owned the home prior to the marriage is likely to be awarded exclusive possession of the residence.  

However, even in this situation, the spouse who owns the home cannot simply lock the other spouse out of the home during the divorce.  If he or she does so, the police will assist the other spouse reenter.  

Rather, the spouse that owned the home can file a motion for exclusive possession of the residence.  All other things being equal, he or she is likely to be awarded exclusive possession of the residence during the divorce.  However, if there are children involved, the best interests of the children are likely to override this consideration.  

When Can I Kick My Spouse Out of the House When Getting Divorced? 

If the marital home is community property, one spouse can generally have the other evicted through a motion for exclusive protection if he or she can prove that the physical or mental well-being of either spouse or of the children will be jeopardized by both spouses continuing to occupy the marital residence.  Courts generally require actual danger in order to award exclusive possession, as opposed to the normal stress associated with living together during the divorce.  

If your spouse is engaging in significant negative, threatening or harassing behavior toward you, you may be able to have him or her immediately removed from the premises by filing a petition for an order of protection.  

We compare motions for exclusive protection to orders of protection in our article: Exclusive Possession of the Marital Residence During a Divorce in Illinois.  

For a more general article on the various types of temporary orders available in divorce, check out: Temporary Relief Petitions in Illinois Divorce.

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