Who Gets the Family Home During the Divorce Proceedings?

The papers were served, the divorce is underway but one question you may be asking is, “Who gets the house during the divorce proceedings?” 

Clients often ask me this question during their initial consultation and the answer is not as easy or as predictable as most would think or hope for.

The issue to determine who gets the home (or “the marital residence”) during the divorce proceedings is otherwise known as temporary exclusive possession of the marital residence. Section 701 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may temporarily “evict” one spouse from the marital residence during the pendency of the divorce case “only in cases where the physical or mental well being of either spouse or their children is jeopardized” by the other spouse.

Generally speaking, each spouse has equal rights to the marital residence – the fact that they are getting a divorce does not change that. Therefore, one spouse cannot force the other from the residence unless it can be shown that occupancy by one spouse would jeopardize the physical or mental well being of the other spouse or their children. This means that the spouse who wants the other ousted from the home must petition the court and meet his/her burden of proof to convince the Judge that actions of the other spouse make cohabitation a threat to his/her or the children’s wellbeing.

You may be asking yourself, “What kind of acts or facts are enough to prove that our wellbeing is jeopardized?” Although there is no bright line test for such standard, simple bickering or unhappiness would unlikely be sufficient to meet one’s burden. The Judge has the discretion to determine if a particular set of facts are sufficient to prove the need to have exclusive possession of the marital residence but often these cases hinge on acts of abuse (physical and mental), substance abuse, mental stability, gross and repeated negligence which may endanger the safety of young children, etc.

Most divorce cases do not give rise to the level of hostility to warrant an award for exclusive possession of the marital residence; which is why it is not uncommon for spouses share the marital residence during the divorce case. Although cohabitation may be uncomfortable and awkward, the ability to stomach your soon-to-be ex-spouse can end up saving you thousands of dollars. Imagine taking your family budget and adding to that, additional payments of rent/mortgage, utilities, groceries and day care, in addition to the legal fees each spouse his paying to their respective attorney. Many couples simply cannot bear these additional costs, leaving cohabitation as the only realistic option.

A divorce is a stressful situation for all involved and experienced legal advice in the field of divorce and other family related matters can help alleviate that stress. The attorneys at Hall Rustom LLC have tried many cases involving the issue of exclusive possession of the marital residence as well as other divorce related subjects. To schedule a consultation regarding your case please call us at (309) 699-4691. Our office is located on the 1st floor of the MAXAM Building in Peoria, IL.