Can I Make My Spouse to Leave The House While a Divorce Is Pending?

Can I Make My Spouse to Leave The House While a Divorce Is Pending?

Last updated: June 2009

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on February 18, 2009.

Q:    I’m getting ready to file for divorce.  My spouse and I live together now.  I’ve asked him, but he refuses to move out.  I want to keep the house in the divorce, and don’t want to continue to live together after the divorce is filed.  Can I get my husband removed from the house, while the divorce is pending?  There has not been any kind of abuse or violence.

A:    Once you’ve filed for divorce, you can seek a temporary order granting you possession of the house.  You’ll have to file a written request for temporary relief in the divorce case, and go to court on that request

At the court hearing, you’ll have to prove that “the physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both parties.”  That’s the standard set out in the Illinois law that applies.  It’s Section 701 of the Marriage and Dissolution of Marriage Act.

That’s a lower standard than the one you’d have to meet to get possession of a house via an Order of Protection.  Under the Illinois Domestic Violence Act that applies to Orders of Protection, you’d have to prove “abuse” to get exclusive possession of a residence.  “Abuse” is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 

So, you don’t need to prove abuse to get the house while a divorce is pending.  Court cases have made it clear that the different standards exist for different situations.

But, you’ll have to jump through some extra hoops.  Asking for a temporary order, that applies until the divorce is final, requires extra work and extra court dates.  If you’re paying a lawyer, you’ll be paying significantly more for those extras.

If you’re not paying a lawyer, and want do it yourself, those extra hoops mean you’ll be on your own in a non-routine case.  You probably won’t find any handy forms or guides to rely on.

Which illustrates an important point about do-it-yourself court cases:  they’re OK for some routine, one-size-fits-all cases.  But the more you want tailor-made customization, the more you need a lawyer.

What does it take to prove that your “physical or mental well being” is “jeopardized,” so that you get the house pending the divorce?  That rather fuzzy standard isn’t necessarily easy to prove.  Three cases address temporary orders evicting a spouse pending a divorce.  Two of them say nobody’s health was jeopardized, so that the orders were improper. 

In one of those cases, the Appellate Court rejected a wife’s claim that the stress from her husband’s presence aggravated her diabetes—because she’d been living separately but relatively peacefully under the same roof with him for years before filing for divorce.

In the one case that affirmed a grant of exclusive possession, the husband admitted that he beat his wife.  Since the case occurred before the Domestic Violence Act, an Order of Protection wasn’t then possible.

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