There is a rarely used section in the Illinois Marriage and Dissolution of Marriage Act that gives a trial court authority to remove a spouse from the marital residence during the pendency of a divorce proceeding. Most people have heard of “orders of protection” which allow judges to remove spouses from a marital residence if there are acts of violence or abuse in the household; however, the filing of a petition for exclusive possession is less common. Can a spouse be removed, or a better question is, should a spouse be removed from a marital residence if the wife claims that her “mental well-being” is jeopardized by continued occupancy of the home by her husband? Courts have been reluctant over the years to order one spouse out of the marital residence during the pendency of a dissolution of marriage proceeding based upon disagreements with one another, arguments with one another, or yelling at one another.
Oftentimes, once a divorce has been filed, one of the spouses may think it is now okay to begin a dating relationship with another individual. Exposing that dating relationship to the other spouse or children can often lead to antagonistic arguments, yelling in front of the minor children, crying, and bouts of depression, but is this enough to grant “exclusive possession” of a marital residence to the depressed spouse?
One case in which an award of exclusive possession by a trial court was overturned by the Illinois Appellate Court involved the following facts: Husband recently had unwanted sexual intercourse with his wife, his wife was a diabetic, and she testified that the husband’s presence in the household caused her undue stress, which led to diabetic reactions. The Illinois Appellate Court reversed the trial court’s decision to allow exclusive possession to the wife and allowed the husband to return to the marital residence during the pendency of the divorce proceeding.
In another case, a hearing on the issue of exclusive possession took place in which the wife testified that during an argument over breakfast, the husband beat her with his handgun, his fist, and an iron. Not only did the wife testify to this beating, but the husband admitted as much. In this case, exclusive possession was awarded to the wife, and the husband was removed from his house. Clearly, this example of exclusive possession also would have given rise to the issuance of an order of protection, had the wife filed for an order of protection in this case.
If you were the judge, what would you do in the following circumstances: The parties have two young children, the husband works long hours, often times stays out late at night, and occasionally does not return home at night. The husband has a girlfriend and drinks alcohol outside of the presence of the minor children. The wife is “steaming mad” about the girlfriend, objects to the husband’s long work hours, and believes it interferes with the children’s bedtimes, leaving the children curious as to whether their father will return home in time to put them to bed. How would you rule in this case if the wife filed a petition seeking exclusive possession of the parties’ marital residence based upon these facts?
A case with this set of facts has not been ruled upon by any Illinois Appellate Court. This is a drastic remedy, and should only be used in cases where the physical or mental well-being of a spouse is jeopardized, imperiled, or endangered by occupancy of the marital residence by both spouses during the pendency of any dissolution of marriage proceedings.