• Is the Burden for Exclusive Possesion of the Home in Divorce Too High?
  • February 4, 2010 | Author: Meghan E. Nemeth
  • Law Firm: Schiller DuCanto & Fleck LLP - Chicago Office
  • Most divorce practitioners in Illinois have seen it all too often: spouses in the midst of a divorce live under the same roof for part of or even the entire duration of the divorce process.  Tensions flare, arguments ensue, and violence often erupts.  Meighan Harmon, a partner at Schiller DuCanto & Fleck LLP in Chicago, states the problem clearly: “Name one lawsuit, other than a divorce, where the plaintiff and defendant live under the same roof?”  Aside from the quashing and?? dissension within the family unit when couples remain in the marital residence during the divorce, there are some additional divorce related incentives for couples that live separate and apart during the process.    

    Current Illinois law makes little effort to definitively separate warring couples living under the same roof.  A party may attempt to obtain exclusive possession of the marital home pursuant to Section 701 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), but the standard is very strict. A spouse may seek temporary eviction from the marital residence only, “in cases where the physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses.”  750 I.L.C.S. 5/701 (West 1977).  Due notice to and a full hearing is with the respondent is mandatory unless waived by the Court for good cause.  The result is, absent severe jeopardy to a party’s physical or mental well-being, Illinois Courts are reluctant to order a party to divorce out of the household, despite the tension and potential for serious conflict.

    The process under the IMDMA can be arduous, and a party will have a hard time prevailing and obtaining exclusive possession of the home.  In In re Marriage of Lima, the Second District determined that no physical or mental jeopardy existed to the wife’s or children’s well being, even though the husband had non-consensual intercourse with her and she testified that the stress of having the husband in the home increased the frequency of diabetes-based medical reactions.  265 Ill. App. 3d 753 (2d Dist. 1994).  The First District in In re Marriage of Lombaer, similarly refused to award exclusive possession to the husband in a divorce.  200 Ill. App. 3d 712 (1st Dist. 1990).  The Court in Lombaer found that, despite the fact that the wife frequently failed to take medication for mental illness which resulted in physical altercations with the husband and ongoing hospitalization, exclusive possession was not appropriate.  Id. at 724.  The Court ruled that there existed insufficient evidence to support the trial court’s finding that the Wife posed a threat to the Husband or the children.  Id.

    There is an alternative to requesting exclusive possession under the IMDMA, but it often results in harm or disadvantage to true victims of domestic violence. If a spouse cannot meet the burden for exclusive possession under the IMDMA, he or she may proceed under Section 214 of the Illinois Domestic Violence Act of 1986 (the “Act”).  The burden on the petitioner to obtain exclusive possession of the residence is potentially easier than that under the IMDMA.  Harassment is included in the Act’s definition of abuse, which requires only a threat of abuse and resultant emotional distress.  See 750 I.L.C.S. 60/103(7).  To make such a finding, a Court must “balance (i) the hardships to respondent and any minor child or dependent adult in respondent’s care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner’s care resulting from continued exposure to the risk of abuse¿ or from loss of possession of the residence or household...”  750 I.L.C.S. 60/214(b)(2)(B).  While the cases under Section 701 of the IMDMA require a showing of past harm which would lead to future physical or mental jeopardy, under the Act the petition may likely be granted with a legitimate showing of knowing conduct that results in emotional distress.

    The effect of this discrepancy in Illinois regarding exclusive possession in divorce is that parties resort to obtaining an order of protection to remove a spouse from the home.  If violence does not already exist in the household, the means of obtaining an order of protection is to create violence or fabricate the threat.  The remedy of exclusive possession can be granted following a brief ex parte hearing.  The defendant is not invited to present his side of the case, and indeed is not aware that the hearing is taking place.  Even though a final hearing is held days later, the defendant is unlikely to move back into the residence.  The allure of a remedy with minimal attention to due process protections and no penalties for perjury serves as a powerful incentive to some to make questionable allegations.  In addition to potential abuse of the system, the vast quantity of petitions and orders in general tends to dilute the effect of meritorious petitions and orders by legitimate abuse victims.  Earlier this year brothers Duncan and Jack Leichtenberg were killed by their father, Michael Connolly, who had a long history of harassing the boys’ mother.  Connolly had violated existing orders of protection against him six times.  He repeatedly filed motions for unsupervised visitation until he finally convinced a judge to grant his request, despite the violations of the orders of protection.  The children were killed shortly thereafter.  The father had unfettered access to the children despite his violation of several orders of protection against him in the preceding four years.  Starks, Carolyn, Hood, Joel and Napolitano, Jo. “2 Boys Found Dead; Mom Rips the Courts.” Chicago Tribune 31 March 2009.  
    Potential solutions do exist.  Attorneys, the first contact to parties to a divorce, should take their ethical responsibility as officers of the Court seriously and refuse to file an order of protection for any reason other than serious abuse.  Discuss the issue of separating spousal residences at an early point in the case and attempt to reach an agreement on the issue.  The ramifications of an order of protection at the onset of a case are large: the parties and oftentimes the attorneys are alienated, and it tends to set a negative tone for future negotiations.  

    Judges should act as gatekeepers by denying a petition for an order of protection except when confronted with strong evidence that the petitioner or children need protection.  Many judges rightfully rule on the side of caution, but should pay special attention to the underlying rationale for a party bringing an order of protection seeking exclusive possession during a divorce. Legislators should strongly consider adding a paragraph into the Temporary Relief section of the IMDMA (750 ILCS 5/501) giving parties an unequivocal and unambiguous option to seek and obtain exclusive possession of the marital residence and reduce tension and conflict that so often erupts in front of the children.  Legislators should also consider deleting the requirement in Section 701 of the IMDMA requiring past harm before an order for exclusive possession is granted.  If an additional paragraph in Section 501 is not the answer, legislators should strongly consider refining Section 701 with a similar burden of proof and balancing test as that enunciated in the Domestic Violence Act.  This would remove any need to obtain exclusive possession of a residence through the Act.

    Every attorney and Judge dealing with this issue should continuously revisit the underlying intent of the drafters of the IMDMA and other statutes: separation of the parties during the divorce.  One of the few elements required to obtain a divorce decree in Illinois is that “spouses have lived separate and apart for a continuous period¿” of time.  750 I.L.C.S. 5/401(a)(2) (West 1977).  If the court can assure separation early in the process, no problems will surface at the prove-up as it relates to this requirement. In addition, if you pay or receive permanent or temporary maintenance, the Internal Revenue Service reserves the deductibility of payments by a payor spouse and the opportunity to decrease the overall tax burden in support payments if the parties are not living together.
    Providing guidance to Illinois is the Texas Family Code (the “Code”).  Section 6.502 of the Code serves as a positive example of such explicit relief.  The “Temporary Injunction and Other Temporary Orders,” section lists “awarding one spouse exclusive occupancy of the residence during the pendency of the case¿” as one of several temporary relief remedies that can be brought to the Court’s attention during a mandatory Temporary Relief Hearing.  V.T.C.A., Family Code § 6.502(a)(6) (2001).  This Temporary Relief Hearing routinely occurs at the onset of the case and is one of the first matters a Court will hear in the case.  Courts routinely grant such relief after analyzing factors like the parties’ earning potential, the hardship on the parties and the children if such relief is granted, the potential of the spouse awarded the home to maintain it in its current state, and the possibility of immediate spousal support to either party based on need.* 
    Illinois could similarly benefit from a paragraph in it’s temporary relief section identical to that in the Texas Family Code.  Illinois Domestic Relations Courts should grant exclusive possession upon a request from the petitioning party when balancing financial, emotional, and physical hardships on the parties and the children at the onset of a case.  Alternatively, as a second option, the burden of proof on the petitioner should be made much lower than it currently is under Section 701 of the IMDMA.  The effect of the burden as it currently works is to promote filing for exclusive possession under the Domestic Violence Act.  If the burden under 701 was at least consistent with that analyzed in practice under the Act, and more parties filed pursuant to the IMDMA, parties could enforce the orders under enforcement petitions rather than through numerous police calls.  The action would be guaranteed to stay in front of the same judge, which would in turn guarantee that the judge in the best position to make an assessment of the credibility of the petitions would make the ultimate rulings.  The addition of such a provision in Section 501, or alternatively the lessening of the burden under Section 701, could alleviate excessive burdens on the domestic violence docket and lighten the general desensitization that seems to have occurred toward the effect of orders of protection by the public in general. 

    A final legislative option that may help bridge the gap between Section 701 of the IMDMA and Section 214 of the Domestic Violence Act, would be to add language in the Act that protects against false motives by parties seeking exclusive possession relief under the Act.  Currently, Section 214 contains language that creates a rebuttable presumption that custody and possession of the children is not proper upon a finding that abuse has occurred.  See 750 I.L.C.S. 60/214(b)(6,7).  However, the statute directs that a hearing must have occurred, and Courts must have made sufficient findings based on custody analyses under the IMDMA and Illinois Parentage Act of 1984.  See Id.  Similar language could be added to the Exclusive Possession remedy section, requiring a hearing with the same statutory burdens required under Section 701 of the IMDMA before exclusive possession is properly awarded.  By creating at least similar burdens for obtaining exclusive possession under the IMDMA and the Act, divorcing parties who have not experienced abuse should be deterred from seeking relief outside of divorce courts, which in turn would lessen the burden on the domestic violence judiciary system and police forces.

    *A special thanks goes out to Laura Martinez of Laura Martinez, LLC, practitioner in Travis, Hayes, and Williamson Counties in Texas for providing information on Texas family law procedure.