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Remove Spouse from House

It is difficult and sometimes impossible for a divorcing couple to live under the same roof.  However, Illinois divorce law only allows the court to evict a spouse from the marital home under certain conditions.  Unless a spouse voluntarily leaves the home, there is domestic violence, or living together jeopardizes the well-being of the spouses or children, the court may not order your spouse to live somewhere else.

When I start divorce proceedings, doesn’t my husband have to get out of the house?

No. This is a question I am frequently asked by wives, and especially those who are or believe they are abused. I usually answer this question by turning it around and asking, “If your husband filed suit for divorce first, would it be fair for you to automatically be required to leave the house?”

My spouse voluntarily left the house and is living someplace else. Can I change the locks?

Yes, but give it some thought before you do so. If you want to minimize antagonism in the divorce, changing the locks might be viewed as an antagonistic move on your part. Despite your having changed the locks, your spouse still has a right to re-enter the house as long as he can do so peacefully (without breaking the law), unless there is a court order keeping him out of the house. If your spouse has moved out, you should, however, be entitled to your own privacy. Sometimes what works is to volunteer to give a key to the changed locks to your spouse, if he will also give you a key to his new residence.

Aren’t there court orders available to evict a spouse from the house?

Yes, first under an Order of Protection, which can be obtained whether or not you have filed for divorce. Second, the divorce court can also order a temporary eviction from the marital residence.

What about the eviction proceedings under the Divorce Act (and not under the Domestic Violence Act)?

A statute in the Divorce Act (Section 701) states that during the pendency of the divorce proceedings a petition may be filed seeking the eviction of a spouse from the marital residence “but only in cases where the physical or mental well being of either spouse or their children is jeopardized by the 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.”

If the physical well being of a spouse is jeopardized, it would be easier and more effective to obtain eviction under an Order of Protection. The alternative statute in the Divorce Act is designed for eviction where the mental well being of a spouse or the children is involved. The best way to prove that mental well being is jeopardized is by the testimony of a mental health professional.

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