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Which Spouse Continues Living in The Marital Home During the Divorce Process?

 Posted on April 28, 2023 in Divorce

palatine divorce lawyerWhen a married couple decides to divorce, typically, one spouse moves out. However, significant conflict can arise when there is a disagreement about who should move out of the home. Securing an apartment or other living arrangement can be stressful and expensive. Consequently, many spouses fight to remain in the marital home. 

In this blog, we will discuss how Illinois Courts handle disagreements regarding residency during the divorce process and what you can do if you and your other spouse disagree about who should stay in the marital home during the divorce process.

An Agreement is Often the Ideal Way to Resolve Disagreements About Living Arrangements

As with many issues during divorce, reaching an agreement regarding who will stay in the marital home is often the best option for divorcing spouses. Consider working with your respective attorneys to negotiate an agreement about who will keep the home and who will move out. Your agreement can also contain instructions for how the second home will be paid for. For example, one spouse may temporarily rent an apartment during the divorce proceedings, but both spouses will split the rent 50/50.

Illinois Law Regarding Who Stays in the Marital Home During Divorce

If divorcing spouses cannot reach an agreement about their living situation during divorce, the Court usually defaults to keeping the status quo. This means that neither spouse is required to leave. However, if the couple has children, this will influence the Court’s decision. The Court always wants to do what is best for children, so if one parent has the majority of the parenting time during the divorce process, the Court may allow that parent to stay in the marital home to provide stability for the kids.

Exclusive Possession of the Marital Home and Orders of Protection

A spouse has the right to file a motion for exclusive possession of the residence and temporarily evict the other spouse in certain circumstances. Illinois law states that if the current living situation is jeopardizing the mental or physical health of either spouse or the children, the Court may grant a spouse exclusive possession of the marital home.

An Emergency Order of Protection (EOP) may also be used to temporarily evict a spouse from a shared marital home. EOPs are designed to protect an individual from abuse, physical violence, threats, intimidation, or harassment. If a spouse or child has been abused, the spouse may seek an order of protection that requires the abusive spouse to move out of the home.

It should be noted that the living arrangements during divorce may not be the same as the living arrangements after divorce. A spouse who stays in the marital home during divorce does not automatically receive full ownership of the marital home in the final divorce decree. Who keeps the marital home is based on a wide range of factors. 

Contact our Palatine Divorce Attorney

Disagreements about who should stay in the marital home during the divorce are just one of the countless issues you may experience during your divorce. Contact our Palatine divorce lawyer for skilled assistance and tenacious legal representation during your divorce. Call 847.873.6741 for a free initial consultation to learn more about how we can help you.


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