Wednesday, April 9, 2014

Getting Exclusive Possession of the Marital Home

          Often times in a divorce case one of the first issues to sort out is, "Will the spouses live together while the case is pending?". Since a divorce case can move very slowly through the system - particularly when things are fought out at each step - exclusive possession of the house can be a major milestone in the case.
          Some attorneys suggest an Order of Protection before the divorce is even filed to try and get the other spouse out. In such instances, they better have some familiarity with the judge's practices for Orders of Protection because what level of abuse is needed to get a spouse booted from the marital home varies from judge to judge and county to county. Also in many counties, the judge who decides the Order of Protection issue is NOT the same judge that hears the divorce. Therefore even if the Order of Order of Protection judge grants exclusive possession, that may not last long if the divorce judge sees differently.
          Another route is a motion filed in the divorce courts for "Petition for Exclusive Possession of the Marital Residence" This was the issue of a recent appeal where an appellate court considered and approved a trial judge's grant of exclusive possession based on allegations that were not that serious.
          In re Marriage of Engst the judge granted the wife's petition for exclusive possession where it found that the children were being exposed to a highly negative situation and that they were suffering due to parents' arguing. There were no allegations of physical abuse but some allegations that the husband was acting "weird", blocking wife's entry/exit from a room, pushing his chest out and calling her profane names in front of the kids. The judge granted the exclusive possession even though the wife admitted to using profanity against the husband on occasion and admitting that the husband never actually physically abused her.
          But before anyone would run to an attorney with similar allegations thinking they can get their spouse booted from the home, this was one judge, in one county and may certainly not be the experience everyone would have with similar allegations.
          While judges may differ, the law in Illinois is the same. It states under what set of circumstances a court can grant exclusive possession:

“...only in cases where the physical or mental well-being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing...enter orders...granting the exclusive possession of the marital residence to either spouse..." 750 ILCS 5/701     
          A judge has ALOT of discretion in determining whether the physical and mental health of the other spouse or the children are in jeopardy. An appellate court will only second guess that decision (after a long appeal process) if it believes an opposite decision is clearly apparent. That is a hard mountain to climb as appellate courts are very reluctant to second guess the trial court because the trial judge was there to listen directly to the parties.
          What is the takeaway? Make sure you contact a knowledgeable attorney who is conversant not only the law but about the county in which the case is pending as many attorneys have walked their clients into situations without fully advising them of the risks and the practices of the judge you will go before.
          To view the case in its entirety, go to: In re the Marriage of Engst