Divorce and exclusive possession

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Remember the 1989 film “The War of the Roses”? It is a story of Oliver and Barbara Rose (Michael Douglas and Kathleen Turner) who viciously tried to get each other out of the house during their divorce proceeding. In the end, both are killed by a dangling chandelier. As the Roses discovered, exclusive possession of the marital residence during the divorce proceeding is not easily obtained.

To forcibly remove a spouse from the house, one must file either a petition for exclusive possession of the residence under Section 701 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) or a petition for an order of protection under Section 214 of the Illinois Domestic Violence Act (IDVA). Exclusive possession does not affect title or dictate who will be awarded the home upon entry of a divorce, but it has ramifications on other issues, such as temporary living arrangements, custody, visitation and support.

Practitioners debate whether obtaining exclusive possession under IDVA is easier than under IMDMA given that one may obtain an order of protection by simply showing harassment or a threat of abuse, rather than “jeopardy.” Exclusive possession is a remedy to be included in an order of protection under Section 214 of IDVA where the risk of future abuse outweighs the hardships to respondent in having to leave the residence. The balance of hardships is presumed by statute to weigh in favor of the petitioner, which also eases the burden.

In contrast, under Section 701 of IMDMA, the court may order the temporary eviction of a spouse during the pendency of the divorce proceeding only 1) where there is a verified complaint or petition on file seeking exclusive possession, 2) where the physical or mental well-being of either spouse or their children is jeopardized and 3) upon due notice and full hearing unless waived for good cause.

There are only a handful of published cases dealing with exclusive possession. In July, the Illinois Appellate Court decided In re Marriage of Levinson and provided guidance on the high standard required for exclusive possession, equating the word “jeopardized” in Section 701 with danger, hazard or peril under its plain dictionary meaning. While physical violence is not required, one must show more than stress, arguing or unhappiness to prove jeopardy.

In Levinson, 2012 IL App (1st) 112567 (July 12, 2012), the trial court awarded the wife exclusive possession of the parties’ marital home during the divorce proceedings, ending the bird-nesting arrangement wherein each parent rotated in and out of the house for parenting time. The wife presented testimony, which the trial court found credible, that she and the children felt undue stress as a result of increased tension in the home, lack of privacy and the husband’s unpredictable behavior, which jeopardized their physical and mental well-being. The wife’s testimony was supported by the 604(b) custody evaluator, who agreed that the children had high levels of stress and that the current living environment was not in their best interests. However, he declined to characterize the circumstances as dangerous.

The husband appealed the order of exclusive possession. The 1st District Appellate Court reversed, using the manifest weight of the evidence standard. The appellate court held that mere stress, confusion and lack of stability for the wife and children were insufficient facts to meet the high standard of jeopardy for exclusive possession under Section 701 of IMDMA.

The appellate court analogized Levinson to In re Marriage of Lima, where the 2nd District Appellate Court held there was no physical or mental jeopardy to the wife’s well-being based on testimony that the husband had nonconsensual sex with the wife three years ago and that her diabetic reactions increased as a result of stress caused by his presence in the home. In both Lima and Levinson, “stress” was not enough to award exclusive possession where the appellate court found no proof of jeopardy, or any future jeopardy, to the physical or mental well-being of the wife or the children by the occupancy of both spouses.

Conversely, in In re Marriage of Hofstetter, the wife did prove facts sufficient to constitute jeopardy under Section 701. In Hofstetter, the husband shouted at his wife, called her names, hit her, fired a gun at her, locked her out of the house, broke her teeth and threatened to kill her. The appellate court affirmed the exclusive possession order.

IMDMA is designed to protect the well-being of spouses and children and mitigate the potential harm to them caused by the divorce process. If the joint occupancy of the marital home jeopardizes one’s safety and well-being, exclusive possession is an appropriate remedy. However, it is also a drastic remedy with long-term implications affecting custody, support, use and enjoyment of one’s property and other issues. Accordingly, courts must ensure the remedy of exclusive possession is not misused while balancing the need to protect families.

Although living together during the divorce process can be arduous, it is not uncommon, and many couples are able to keep the peace living under the same roof. But when actions rise to “The War of the Roses,” exclusive possession under IMDMA or IDVA is likely the only safe option.

Article originally appeared in the September 2012 issue of Chicago Lawyer