President Lincoln famously quoted the Gospel of Mark when he stated that “a house divided against itself cannot stand” in advocating for the abolition of slavery in the United States back in 1858. A house divided because of marital discord can also make one’s home life pretty wobbly too.
Lets face it, working through a marital breakdown isn’t all that pleasant in the least contentious of circumstances. Oftentimes animosity can fuel arguments and make life pretty unpleasant as your dissolution of marriage case works its way through the court system.
What if you still must share a home with that husband/wife in the months or years while the case gets finalized? Do you have a choice?
To forcibly remove a spouse from the house, one must file either a petition for exclusive possession of the residence under Section 701 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) or a petition for an Order of Protection under Section 214 of the Illinois Domestic Violence Act (IDVA). Exclusive possession does not affect title or dictate who will be awarded the home upon entry of a divorce, but it has ramifications on other issues, such as temporary living arrangements, custody, visitation and support.
What’s the better route?
Attorneys debate whether obtaining exclusive possession under IDVA is easier than under IMDMA since you can get an order of protection by simply showing harassment or a threat of abuse, rather than “jeopardy.” Exclusive possession is a remedy to be included in an order of protection where the risk of future abuse outweighs the hardships to respondent in having to leave the residence. The balance of hardships is presumed by statute to weigh in favor of the petitioner, which also eases the burden. The domestic violence act also allows for a litigant to obtain an Emergency Order of Protection without notice to the opposing party in certain circumstances.
In contrast, under Section 701 of IMDMA, the court may order the temporary eviction of a spouse during a divorce proceeding only 1) Where there is a verified complaint or petition on file seeking exclusive possession, 2) Where the physical or mental well-being of either spouse or their children is jeopardized and 3) Upon due notice and full hearing unless waived for good cause.
In July, the Illinois Appellate Court decided In re Marriage of Levinson and provided guidance on the high standard required for exclusive possession, equating the word “jeopardized” in Section 701 with danger, hazard or peril under its plain dictionary meaning. While physical violence is not required, one must show more than stress, arguing or unhappiness to prove jeopardy.
Facts that have NOT supported exclusive possession:
>>Child’s undue stress;
>>Lack of privacy;
>>Husband’s unpredictable behavior;
>>Increased diabetic reactions due to stress.
Facts that HAVE supported exclusive possession:
>>Husband shouted at wife;
>>Husband called wife names;
>>Husband hit wife, fired a gun at wife, and broke her teeth.
IMDMA is designed to protect the well-being of spouses and children and mitigate the potential harm to them caused by the divorce process. If the joint occupancy of the marital home jeopardizes one’s safety and well-being, exclusive possession is an appropriate remedy. However, it is also a drastic remedy with long-term implications affecting custody, support, use and enjoyment of one’s property and other issues. Accordingly, courts must ensure the remedy of exclusive possession is not misused while balancing the need to protect families. Although living together during the divorce process can be arduous, it is not uncommon, and many couples are able to keep the peace living under the same roof.