Lawyers secret: Court’s are becoming less tolerant of removing a spouse from his or her home.
There are two legal devices to remove your spouse from the marital home. The first of these options is bringing a motion for exclusive possession. The motion is the least aggressive legal maneuver a spouse can take, when attempting to achieve something very offensive to their spouse. Usually, the motion is contested, and there will be a hearing. Many times witnesses must be called to testify, and sometimes not. Given the state of our current economy in 2012 and 2013, Courts have been less inclined to kick a spouse out.
As a general note, spouses should recognize that attempting to obtain exclusive possession generally sets a negative tone in the case and should be pursued only in extreme circumstances. Bringing a motion for exclusive possession can also invite a counter-motion seeking the same thing. So, your spouse can say, “yes, living together is horrible, but the court should remove my spouse – not me.” If your spouse counters your motion with a similar request, the Court may ascertain who has the better means to find alternative housing. The Courts may look to the spouse with the most family in the immediate area as being the better able to find alternative (and temporary) housing.
The second legal option is the Order of Protection, generally referred to as an “OP”. Getting an OP is a little tougher and a spouse must show that there was some form of extreme harassment and or physical abuse. Obtaining an OP may be quicker, which better satisfies our McDonald’s drive-thru mentality; however, getting the OP and the litigation that generally follows an OP is very (and I mean, very, very) expensive. It’s not entirely impossible to have 3 to 4 court dates before a permanent OP is entered. This could equate to thousands of dollars of attorneys’ fees.
Legal Update (July 12, 2012): A new case came down from the 1st District, called In re the Marriage of Levinson (2012 Il App (1st) 112567). This case stands for general rules to be applied when obtaining exclusive possession. That case stands for the position that to obtain an order of protection, a spouse must (1) file a verified petition seeking exclusive possession of the marital residence and (2) the physical or mental well-being of either spouse or their children is jeopardized by the occupancy of the marital residence by both spouses. The Court in the Levinson case noted that a review of cases suggests that section 701 “imposes a high bar for exclusive possession.” The court then provided some examples as to when exclusive possession would be allowed: when a spouse yells, hits with his/her fist, beats the other spouse over the head, and locks the other out of the house. The Court also commented that divorce “stress” and a stressful environment isn’t enough.
The Levinson case stands for the position that to kick your spouse out, your spouse must actively engage in behavior that is causing a problem. Simple stress, or just wanting him/her out, isn’t enough of a reason to kick your spouse out of the house.