What Is Exclusive Possession of the Marital Residence?

 Posted on January 17, 2020 in Family Law

It is always a difficult situation when two people get divorced and, at least until it is final, have to live in the same home. There is typically tension between the two parties, and that stress can filter throughout the house. When children are involved, they can feel it too, and that can become unhealthy. In some instances, it may be possible for one spouse to evict the other from the marital home and take exclusive possession of it. Unfortunately, this is not easy to do. An Illinois divorce lawyer can help individuals that wish to take exclusive possession of their home.

Exclusive Possession Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA)

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) allows for one spouse to seek exclusive possession of the marital home in certain situations. The requirements to warrant exclusive possession under this Act though, are quite strict. This type of possession is only granted when one spouse is in fear of their mental or physical welfare or the welfare of their children.

It is important to understand that the stress of living with another spouse is not enough to warrant exclusive possession. There must be a genuine fear that living with a spouse will place a person or their children in jeopardy. However, individuals that obtain exclusive possession can temporarily evict their spouse, and even change the locks if they wish.

Exclusive Possession Under the Illinois Domestic Violence Act

Many people find that it is very difficult to prove that they are in danger. This is largely due to the fact that much of what happens in a home occurs behind closed doors. There are no witnesses and sometimes, very little evidence. In these cases, individuals may find that seeking exclusive possession of the marital residence is easier under the Illinois Orders of Protection as stipulated by the Illinois Domestic Violence Act (IDVA).

Exclusive possession under the IDVA may be granted when it is found that the threat to the person seeking temporary possession is greater than the hardship it would cause to the other spouse. When domestic violence is difficult to prove because there is little evidence of it, the IDVA may allow victims to claim exclusive possession easier than they would be able to under the IMDMA.

Another advantage an Order of Protection has over the IMDMA is that it can do more than remove a spouse from the home. It can also prohibit them from visiting children or spouses at school or their place of work.

Our Illinois Divorce Lawyers Can Help with Exclusive Possession

If you are going through a divorce and wish to seek exclusive possession of the marital home, it is important that you speak to a skilled Hinsdale divorce lawyer. At the Law Office of Martoccio & Martoccio, we can advise on the best method to evict your spouse from the home, and give you the best chance of success with your case. Call us today at 630-920-8855 to schedule your free initial consultation.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=6000000&SeqEnd=8300000