Exclusive Possession of the Marital Residence
by Wes Cowell
updated 26 October 2019
Two Laws, Same Objective, Very Different Paths: "Exclusive possession" is available in the divorce law (750 ILCS 5/501 (c-2)) for folks going through a divorce. If you're not married, "exclusive possession" is available in the domestic violence law (750 ILCS 60/214 (b)(2)) as part of an Order of Protection. Divorcing spouses may use either the divorce law path or the Order of Protection path to secure the home unto themselves.
The two laws offer the same objective but proscribe very different paths to follow. Let's take a look:
The Divorce Law: Illinois' divorce law recognizes that sometimes things may be very uncomfortable at home while a divorce is going on. Some spouses can get downright nasty toward each other. Sometimes it's just better to separate spiteful spouses to allow room for some peace and quiet. To do that, courts may evict one spouse from the marital residence. The law says:
(c-2) Allocation of use of marital residence. Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may, during the pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse, by eviction from, or restoration of, the marital residence, until the final determination of the cause pursuant to the factors listed in Section 602.7 (allocation of parental responsibilities and parenting time) of this Act. No such order shall in any manner affect any estate in homestead property of either party. In entering orders under this subsection (c-2), the court shall balance hardships to the parties.
750 ILCS 5/501(c)(2)
Burden of Proof: To prevail, you'll have to show that your (or your child's) physical or mental well-being is "jeopardized" by the continued shared occupancy of the home. That's it. You don't have to show abuse. You don't have to prove physical violence. All you have to show is that the continued occupancy presents a threat to your (or your child's) physical or mental well-being.
Examples and Sufficient Evidence: Keep your eye on that word "jeopardized" -- that's the hinge-pin in these cases.
The Domestic Violence Law: Whether you're married or not, you may seek "exclusive possession" under an Order of Protection. Orders of Protection are granted under the Domestic Violence Act (750 ILCS 60/101 et seq.) whenever the court finds that there has been "abuse," which is defined as "physical abuse, harassment, intimidation of a dependent, [and] interference with personal liberty or willful deprivation . . . ." To prevail, you'll have to first prove that you deserve an Order of Protection (by proving that abuse has occurred) and then satisfy two tests:
1. Right to Occupancy: you must have a right to live in the home. You can satisfy this test if:
you are named on the title or lease;
someone (other than your partner) who HAS a right to live in the home gives you permission to live there (we mostly see this when domestic violence shelters allow victims to live in an apartment owned by the shelter); or
the abuser has a legal duty to support a child in your care (you must have a child support order -- no child support order, no right to live in the home).
2. Balance of Hardships: If the abuser doesn't have a right to live in the home, that's it, it's over, the abuser must leave. If, however, the abuser and the victim each have a right to live in the home, then the court must balance:
(i) the hardships to respondent (the other side) and any minor child or dependent adult in respondent's care resulting from entry of this remedy
- against -
(ii) the hardships to petitioner (you) and any minor child or dependent adult in petitioner's care resulting from continued exposure to the risk of abuse (should petitioner remain at the residence or household) or from loss of possession of the residence or household (should petitioner leave to avoid the risk of abuse).
If you can do those three things, you win exclusive possession of home.
Exclusive Possession vs Order of Protection: