In today’s economy, many couples approaching divorce cannot afford to physically separate. Unemployment, the decline in the value of real estate, or stock market losses have directly or indirectly impacted everyone’s net worth. But for some parties, staying in the same home poses serious risks that cannot be ignored merely because separation would be financially draining. If you are subject to physical or mental abuse inside your home you do have options. Under the right set of circumstances, obtaining exclusive possession of your residence is possible through either the Illinois Domestic Violence Act or the Illinois Marriage and Dissolution of Marriage Act (IMDMA).
At first glance, the provisions of the two acts may seem similar, but there are significant differences. The first difference is obvious: To proceed under the IMDMA, a divorce case must already be pending, while under the domestic violence act, no divorce action will be in place, under both statutes, you must be able to prove abuse as defined by the respective act. Obtaining exclusive possession under the domestic violence act can be quicker at times, but it is improper to use the domestic violence act to remove your spouse from your home in order to obtain an advantage in a dissolution proceeding.
Another difference involves the characterization of the residence from which one party is trying to remove the spouse. Pursuant to the wording of the IMDMA, the residence must be a marital residence. In Illinois, even if the abuser claims the marital residence, the character of property is usually not determined until the actual divorce is entered, so the mere claim that a house is non-marital is not always sufficient to block removal during the pendancy of the case. An advantage under the domestic violence act is that the characterization of the house has no bearing on the Court’s decision. The classification of the residence is irrelevant, so long as the abused spouse has a right to occupy the home. The non-owning party is deemed to have a right to occupy the residence under several circumstances, including if the house is solely owned by your spouse.