Who Gets the Home During a Divorce?

the front of a house at dusk with the windows lit up

In many cases, physical separation is conducive to particular issues that arise in divorce proceedings. By physically separating, the parties can prevent certain conflicts from arising or getting worse. Couples who do not physically separate may risk exacerbating their differences on various issues.

The decision for one parent to voluntarily move out of the marital residence has significant support in Illinois law. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) underscores a robust public policy for letting the parties stay in the marital home pending divorce proceedings.

However, in cases where the conflict between the parties is so extensive that they can no longer live together, Illinois courts can issue a temporary order granting exclusive possession of the marital home during divorce proceedings.

According to Section 501(c-2) of the IMDMA, courts can grant a temporary order for exclusive possession of the home, if such a request:

  • “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
  • may be revoked or modified before final judgment, on a showing by affidavit and upon hearing; and
  • terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.”

Issues Affecting a Temporary Order Granting Possession of the Home

Under Section 501 of the IMDMA, a party can get exclusive possession of the marital residence by showing that their physical and mental wellbeing, or that their minor children, would be at risk if they continued to live with the other party under one roof:

“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 of this Act. No such order shall in any manner affect any estate in homestead property of either party.”

If you are want to live in the home pending the resolution of divorce proceedings, consider the following issues:

  • The length of your marriage
  • Whether you have minor children with your spouse
  • Whether you are afraid of your spouse
  • Any emotional distress resulting from continued cohabitation with your spouse
  • Efforts to resolve the conflict between you and your spouse or otherwise keep the peace
  • Any substance abuse issues your spouse has
  • A history of court intervention in conflicts between you and your spouse

The Ownership of the Marital Home After Divorce

A temporary order for exclusive possession of the marital home is effective during divorce proceedings. However, the ultimate rights and responsibilities of the parties concerning the home will ultimately turn on principles of property division.

In Illinois, all property acquired during marriage constitutes marital property that is subject to equitable distribution upon divorce. In other jurisdictions—such as community property states like California—marital property is divided equally between divorcing spouses. However, in Illinois, courts must consider certain factors in deciding how exactly to distribute marital property. Therefore, the parties may not necessarily have “equal” ownership rights to the marital home.

One significant consideration in determining the ultimate disposition of the marital home concerns the best interests of the minor child. Courts recognize the benefit of maintaining the continuity of a stable and familiar living environment for children in divorce cases. As a result, a parent who ultimately receives sole responsibility for parenting time has a better chance of retaining exclusive ownership of the family residence.

Illinois courts will consider various factors when deciding who gets the marital home at the end of a divorce, including:

  • Title to the home
  • The provisions of a prenuptial agreement, if applicable
  • Repair and renovation costs
  • The overall benefit of selling the house
  • The timeframe of outstanding home loans or refinancing

To Learn More, Consult the Law Offices of Jonathan Merel, P.C. Today

Do you have any more questions or concerns regarding the possession and ultimate disposition of your home in a divorce case? If so, you should consult an experienced attorney from the Law Offices of Jonathan Merel, P.C. for quality legal advice.

Call us at (312) 487-2795 or contact us online to arrange for an initial case evaluation today.

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