Order of Protection vs Exclusive Possession

Gaining Exclusive Occupancy of Your Home

An important question during divorce proceedings is whether or not you should continue to live in the same residence as your soon-to-be ex-spouse until you divorce is finalized. In order to be the one who gets to stay in the marital house, you need to petition the court exclusive possession of the residence. Exclusive possession may be achieved in two ways: through an order of protection granting it, or through exclusive possession during divorce proceedings. This guide will tell you everything you need to know about gaining exclusive possession of the residence.

Exclusive Possession Through Divorce Law

Illinois divorce law recognizes that a shared home may be uncomfortable while a divorce is occurring and offers a way for one spouse to evict the other from the marital residence. To do this, you must show that your (or your child’s) physical or mental well-being is jeopardized by continuing to occupy the same residence. (750 ILCS 5/501 (c-2)). You do not need to show that any abuse or physical violence has occurred, merely that continuing to share a home presents a threat to your (or your child’s) physical or mental well-being.

In re Marriage of Akers, 2012 IL App (2d) 120526-U, demonstrated that violence or abuse does not need to be present in order to be granted exclusive possession of the marital home. In this case, after filing for divorce, a soon-to-be ex-wife filed a petition for exclusive possession of the marital residence when her soon-to-be ex-husband continued to sleep over at the marital residence even though he had purchased a second residence and had agreed to use the second residence as his home. The petitioner contended that his unannounced presence in the home became uncomfortable for herself and their children, particularly when he would insist on having “irrational and manipulative conversations” with her causing the children to cringe when the two are arguing. Because of this, the Appellate Court of Illinois granted the petition for exclusive possession of the marital residence because the mental well-being of the spouse and children was put in jeopardy.

Exclusive Possession Through an Order of Protection

This remedy is available to both married and unmarried people sharing a residence and is part of the Domestic Violence Act (750 ILCS 60/101 et seq.) whenever the court finds that there has been abuse. Abuse is defined as “physical abuse, harassment, intimidation of a dependent, [and] interference with personal liberty or willful deprivation...” (750 ILCS 60/101 (b)(1)). To prevail with this method, you will first have to prove that an Order of Protection is deserved (by proving abuse has occurred) and satisfy the following two tests: (750 ILCS 60/214 (b)(2))

  • Right to Occupancy: you must have a right to live in the home

    • This can be proven if your name is on the title/lease, someone who has the right to live there (other than your partner) permits you to live there, or if the abuser has a legal duty to support a child in your care and you have a child support order.

  • Balance of Hardships: If the abuser does not have a right to live in the home, the abuser must leave. However, if both the abuser and the victim have the right to live in the home, the court will balance the following:

    • The hardships to the respondent (the other side) and any minor child/dependent in respondent’s care resulting from the order of protection


    • The hardships to the petitioner (you) and any minor child/dependent resulting from continued exposure to the risk of abuse should petitioner remain at the house or from the loss of possession of the house should petitioner leave to avoid the risk of abuse.