Exclusive Possession of the Marital Residence: Who Leaves?

Many couples continue to reside together in the marital residence during divorce proceedings, even when the thought of having to continue to live with their spouse is terribly unpleasant.  This may be especially true when there are children involved.


But what happens if the living situation becomes especially sour or openly hostile?  Specifically, what happens when the physical or mental health of one of the spouses, or even one of the children, is at risk?  Section 501 of the Illinois Marriage and Dissolution of Marriage Act provides a remedy for the situation during the pendency of a divorce.


Specifically, Section 501 provides that either party may petition for exclusive possession of the marital residence, which is essentially “temporary eviction” of one spouse from the marital residence while the divorce case is pending.  A petition of this nature will only be granted, however, if the spouse bringing the action can show that the physical or mental well-being of either spouse or the children is jeopardized by the occupancy of the residence by both spouses.  This standard is not to be taken lightly, and requires more than mere “stress.”


In the case of Marriage of Engst, the Fourth District affirmed a trial court’s award of exclusive possession of the residence during the pendency of a divorce.  In that case, the wife petitioned the court for exclusive possession.   She alleged that her husband was physically aggressive to her.  He would attempt to block her access through doorways in the home by sticking out his chest or blocking her with his body as she would attempt to walk by, and then he would blame her for bumping into him.  The husband had never hit her, though he did threaten to “knock her head off.”  However, and she never called the police on him.  She did fear the constant threat of physical aggression, though, and felt “intimidated, bullied, antagonized, and uncomfortable.”


The wife also described ways in which the husband had been verbally aggressive towards her.  For instance, he criticized and swore at her, he called her names in front of the children, and he used a derogatory tone when speaking to her, in an effort to mock and degrade her.  She also testified that he would engage in “baby talk,” or whisper about things he believed she had done wrong.  Finally, she acknowledged that she did make comments back to him.  She would tell him that he was acting immature, and she even use profanities towards him on occasion.


The wife also testified that these events were starting to take a toll on the children.  She noted that they were stressed, that the youngest daughter would cry, and that both children expressed that they did not like when their parents argued.  The husband denied that these occurrences were affecting the children, and argued that the parties’ living situation and circumstances were “typical” for that of a divorcing family.


On a temporary basis, the trial court awarded wife exclusive possession of the marital residence, and the Fourth District Appellate Court affirmed.  The court found that wife’s testimony was credible, and found that the children were being exposed to a very negative living environment which jeopardized their mental health.  The court also found that the husband was intimidating her and acting with physical aggression towards her, and that the children witnessed the conflict between the parties.  The court concluded that, under these circumstances, the wife’s and the children’s physical or mental well-being was being jeopardized.


In addition to finding someone’s well-being to be jeopardized, the court must also balance hardships to the parties when awarding exclusive possession.  This means the court must weigh factors such as each party’s employment, each party’s income, whether an Allocation Judgment has been entered, and if so, what it provides for.


The remedy of exclusive possession can only be ordered upon proper notice to the responding party, and a full evidentiary hearing, unless waived by the court for good cause shown.  Even if granted, an award of exclusive possession under Section 501 is by definition a temporary remedy.  That means it does not affect the rights of the parties or children which are to be decided in subsequent proceedings.


Because an award of temporary exclusive possession applies only during the pendency of the divorce proceedings, it may be modified or revoked before entry of a final judgment.  A temporary order will terminate upon entry of a final judgment for dissolution of marriage, at which time it will be replaced with a final order.


Please contact us for more information.

Posted in:
Published on:

Comments are closed.

Contact Information