Who Gets the Family Home During the Divorce Proceedings?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

The papers were served, the divorce is underway but one question you may be asking is, “Who gets the house during the divorce proceedings?” 

Clients often ask me this question during their initial consultation and the answer is not as easy or as predictable as most would think or hope for.

The issue to determine who gets the home (or “the marital residence”) during the divorce proceedings is otherwise known as temporary exclusive possession of the marital residence. Section 701 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may temporarily “evict” one spouse from the marital residence during the pendency of the divorce case “only in cases where the physical or mental well being of either spouse or their children is jeopardized” by the other spouse.

Generally speaking, each spouse has equal rights to the marital residence – the fact that they are getting a divorce does not change that. Therefore, one spouse cannot force the other from the residence unless it can be shown that occupancy by one spouse would jeopardize the physical or mental well being of the other spouse or their children. This means that the spouse who wants the other ousted from the home must petition the court and meet his/her burden of proof to convince the Judge that actions of the other spouse make cohabitation a threat to his/her or the children’s wellbeing.

You may be asking yourself, “What kind of acts or facts are enough to prove that our wellbeing is jeopardized?” Although there is no bright line test for such standard, simple bickering or unhappiness would unlikely be sufficient to meet one’s burden. The Judge has the discretion to determine if a particular set of facts are sufficient to prove the need to have exclusive possession of the marital residence but often these cases hinge on acts of abuse (physical and mental), substance abuse, mental stability, gross and repeated negligence which may endanger the safety of young children, etc.

Most divorce cases do not give rise to the level of hostility to warrant an award for exclusive possession of the marital residence; which is why it is not uncommon for spouses share the marital residence during the divorce case. Although cohabitation may be uncomfortable and awkward, the ability to stomach your soon-to-be ex-spouse can end up saving you thousands of dollars. Imagine taking your family budget and adding to that, additional payments of rent/mortgage, utilities, groceries and day care, in addition to the legal fees each spouse his paying to their respective attorney. Many couples simply cannot bear these additional costs, leaving cohabitation as the only realistic option.

A divorce is a stressful situation for all involved and experienced legal advice in the field of divorce and other family related matters can help alleviate that stress. The attorneys at Hall & Rustom LLC have tried many cases involving the issue of exclusive possession of the marital residence as well as other divorce related subjects. To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.

 

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

DIVORCE: Does it have to be a fight to the end?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Unfortunately for some, their marriages have deteriorated to such an extent that neither person can seemingly decide on a single issue – except for the fact that they each WANT A DIVORCE.  But not every divorce needs to be the knock- down, drag- out fight they hear about from their friends.  In fact, the most time efficient, cost effective method of divorce is the “Uncontested” or agreed divorce.  In an uncontested divorce, couples are able to combine their financial resources, as opposed to against each other, in an effort to pay for legal costs and attorney fees associated with the dissolution of marriage process.

Due to conflict of interests, a single attorney should not represent both parties in the divorce but will represent and advise either the husband or wife through the entire process.  The parties will negotiate and agree on the terms of the divorce outside the presence of that attorney and the attorney will then draft the corresponding documentation pursuant to the directions given to him by his client (of which both parties negotiated).  After the documents are drafted, the unrepresented party has the option to hire his/her own attorney to review and explain the documentation to ensure that the terms and meanings were drafted pursuant to the understanding of the parties.

The uncontested divorce process is essentially comprised of 3 to 4 stages/documents which are as follows: 

1) The Petition for Dissolution and Answer /or Entry of Appearance

2) The Marital Settlement Agreement

3) The Parenting Agreement (if child custody is applicable)

4) The Judgment for Dissolution  

The Petition for Dissolution – is the legal complaint that is filed with the court that initiates the legal proceeding.   It contains factual allegations setting forth the names of the husband and wife, the names of the children (if any), the date and county the parties reside and were married and the legal reason as to why the parties are seeking a dissolution of marriage.  The responding party files what is called an “Entry of Appearance” or “Answer to the Petition”.  In an uncontested divorce, this document is signed and entered by the other party and acts as his/her consent to the jurisdiction of the court.  Once these documents are filed, the responding husband/wife may never attend a court proceeding if he/she so wish not to attend.

Once the Petition for Dissolution and Entry of Appearance (otherwise called the pleadings) are filed with the court, the parties then create a contract called the Marital Settlement Agreement.  This contract will govern the distribution of marital assets and debts such as: the house, the cars, checkings/savings accounts, credit card debts, mortgage, etc.  In some cases this document will also include a provision for maintenance (aka alimony), if the parties agree and the facts merit such allowance.

The next document is called the Parenting Agreement (if applicable).  This document governs the terms of the child custody arrangement between the parties.  This document sets forth such things as parenting times each parent has with the children, who makes the medical decisions, educational decisions with the children, and child support and insurance coverage.  If the parties are unable to determine the custody issue on their own then Illinois mandates that the parties go to mediation with a neutral third party (usually an attorney or retired judge) to hash out the terms of their agreement.

The Judgment for Dissolution is the final order that dissolves the bonds of marriage between the parties.  The Judgment for Dissolution also incorporates the terms of both the Marital Settlement Agreement and Parenting Agreement making the terms of each court enforceable contracts.  It may also include a provision that gives the wife her maiden name. 

Whereas contested divorces can take many months or even years to complete, uncontested divorces may only take weeks, even days to complete from start to finish.  In most cases, only one court appearance is needed after these documents are executed.    The length of the time of the process usually depends on the cooperation between the parties and the availability of court time

It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters.  You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests.  At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests.  To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. 

 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.