In most cases, getting divorced means you and your spouse will ultimately no longer be living together. However, that doesn’t always answer the question of what to do right now. While your divorce is pending, do you have to leave the marital home, or can you continue living with your soon-to-be ex-spouse?
The short answer is no, you don’t have to move out during a divorce in Illinois. However, whether you stay put or move out can have some effects on your legal rights, so it’s always best to get advice from an experienced divorce lawyer before you make any significant changes.
In Illinois, you can get divorced without moving out first
Illinois divorce law focuses on the breakdown of the marriage, not the physical separation of the parties. As such, neither party is required to move out of the marital home. All that is required is “irreconcilable differences,” which simply means that there has been a breakdown in the marriage and further efforts to reconcile would be futile. And it’s perfectly possible for such a breakdown to happen while you are still physically living in the same home.
One spouse can’t force the other to move out, but a court can under some circumstances
In general, both spouses have the right to remain in the marital home while divorce proceedings are ongoing. Your spouse cannot kick you out (and vice versa) by removing your belongings, changing the locks, and so on. In fact, this might be considered an unlawful “self-help” eviction. In this situation, you can go to court and get a temporary order to stop your spouse from interfering with your access to the home, and the court might also take their actions into account when it comes time to decide property division or child custody.
That said, the court can grant what’s called “temporary exclusive possession” of the marital home during divorce proceedings, which means one spouse stays in the home and the other must move out. The court will only do this if continuing to live together is not in the best interests of the family or poses a risk to safety. Some such circumstances include:
- Domestic violence
- Conflict or unstable conditions that pose a threat to the children
- Extreme conflict that makes cohabitation impossible
Reasons you might want to move out while your divorce is pending
- Avoiding conflict: Living together with your divorcing spouse can be a recipe for conflict over everyday routines as well as the divorce itself, while moving out can make more of a clean separation.
- Safety: Of course, if there is domestic violence or conflict severe enough to create a safety issue, you may need to move out to protect yourself and your children.
Reasons you might not want to move out while your divorce is pending
- Finances: Continuing to live together may be more financially affordable, since you only need to pay utilities, rent or a mortgage, and so on for one property instead of two.
- Children: Continuing to live together with your children can maintain some degree of stability for them. Furthermore, spending more time with your children now can strengthen your position in any child custody disputes.
How moving out can affect your divorce case
There are some circumstances in which moving out while the divorce is pending can help your divorce get resolved more efficiently and effectively. Physical distance can make it easier to emotionally separate from the relationship. Furthermore, without conflict over day-to-day tasks, you and your spouse may be more able to negotiate in good faith and reach a positive resolution. And if you’re already living separately from your spouse, some aspects of your separation agreement may become clearer as you discover what works for you in building a separate life.
That said, moving out can also adversely affect the property division if the divorce is ultimately decided by the court. Moving out of the marital home doesn’t affect your financial ownership of the home itself—Illinois follows the principle of “equitable distribution” of all marital property, regardless of who is currently using each piece of property—but as a practical matter, a court may be more likely to award possession of the house to the spouse who is still living there, while the other spouse’s ownership stake is bought out. If you would prefer to stay in the home long-term, then moving out may not be in your interest.
Likewise, child custody decisions can be affected if you move out before the divorce is finalized, while the children stay with their other parent in the marital home. Courts prioritize stability, so if one parent is spending most of their time with the children right now, that parent is more likely to get a larger share of parenting time moving forward. Furthermore, if moving out causes disruption or instability for the children, the court can take that into account when deciding what is in the best interests of the child.
The takeaway: get legal advice before you change your living arrangements
Even if you and your spouse are currently on the same page about your living arrangements during the divorce, it’s always best to get legal advice. An experienced divorce attorney can explain whether staying in the marital home or moving out is in your best interest under your specific circumstances. Whether you choose to stay or go, an attorney can also help you put your arrangements in writing—or if necessary, even get a temporary court order—to ensure that your legal rights are protected.
Deciding whether to stay or leave the marital home is a difficult choice, but Courtney Clark Law, P.C. can help provide clarity. Contact us today to speak with an experienced divorce attorney.
"Charles Courtney delivered outstanding representation. He took a complicated, emotionally charged situation and brought clarity, strategy, and control to every step of the process. His guidance, preparation, and courtroom presence made a major difference and helped deliver the outcome my family needed. I would recommend him without hesitation to anyone dealing with a challenging family law case." – Garry C., ⭐️⭐️⭐️⭐️⭐️