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Out In the Cold…..Leaving the Home During Divorce Could Sting

Published in Chicago Lawyer Magazine, September 2021
By Daniel Stefani

In virtually every divorce I get the question…should I move out upon filing or should I wait until the end of the case when the house is either sold or allocated to myself or my spouse?

The short answer is it’s difficult to have one spouse actually compel the other to leave the marital residence by court order upon filing. So you better have a good reason to leave voluntarily when the outcome of the divorce is uncertain. To force a spouse from the home, there must be a finding of abuse under the Illinois Domestic Violence Act. There also are extreme circumstances where a court can enter an order of exclusive possession under the Illinois Marriage and Dissolution of Marriage Act.

That said, many times a spouse will be asked to voluntarily leave the home for either a trial separation, or a permanent separation before or during the proceedings. In circumstances where there’s a trial separation and one spouse attempts to appease the other to save the marriage, many times that spouse will move to an apartment nearby or somewhere else. The spouse remaining in the house could change the locks.

In most situations, the leaving spouse is on the home’s title. The prevailing view among divorce practitioners in Illinois is absent a court order excluding the leaving spouse, that spouse has a legal right to reenter the home at any time. As such, it’s not unusual for one spouse to leave the residence at the other’s request or for their own reasons, but based on the expectation of being able to reenter the home.

On April 26, 2021, the 1st District Illinois Appellate Court disagreed in the case of People v. Mario Lawrence, 2020 IL App (1st) 171399.  In the case, Lawrence was “kicked out” of the marital home by his wife after a fight. The wife put his clothes outside of the house and did not permit him to reenter. She also changed the locks. The parties had one minor child who visited with Lawrence on a regular basis after he vacated the home.  Despite the fact his name was on the lease, he stayed away voluntarily until approximately six months later when he entered the house at 3:30 a.m., forcibly by throwing a brick through a garage window. An argument then ensued between Lawrence and the wife’s boyfriend. Police later arrested Lawrence and a grand jury indicted him on charges of home invasion and kidnapping. The trial court found the husband guilty of home invasion but not kidnapping. He was sentenced to six years in prison.

The 1st District affirmed the conviction because the wife had thrown Lawrence out of the home and changed the locks. This was despite them being married and him being on the lease. In its analysis, the 1st District Appellate Court relied in part on Sec. 19-6 of the Criminal Code in addition to case law.

Even though there was no divorce decree, order of protection or other court order barring Lawrence from the home, the appellate court also relied on People v. Howard, 374 Ill. App. 3d 705 (2007), which held that “an estranged spouse cannot avoid prosecution for home invasion unless he has both a tenancy interest and a possessory interest.” The defendant in Howard had no possessory interest because he was no longer living in the home like Lawrence. The court cited other cases from other jurisdictions which had similar home invasion statutes adopting the concept that in determining a defendant’s right to enter his or her spouse’s or ex-spouse’s property, the tryer of fact should consider “the marital status of the parties, the existence of any legal orders against the defendant, extended periods of separation, the names on leases or documents of title, the acknowledgement by a defendant that he has no right to enter the premises, and the method of entry.”

Defendant also argued the absence of a court order excluding him was sufficient to preclude a finding of home invasion, especially when he was on the lease. The appellate court disagreed stating there was nothing in the law requiring a court order as a necessary condition for finding a person who has an ownership right, guilty of home invasion. Therefore, a spouse in possession of marital property may establish a right to exclude the estranged spouse without a court order under appropriate circumstances.  The appellate court concluded the pending divorce proceedings, his eviction by his wife and his absence for six months, the changed locks, and Lawrence’s use of a brick to gain entry, were all factors supporting the trial court.

This case is a cautionary tale for all divorce litigants thinking of leaving the home with the expectation of reentry any time before the decree is final.

Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.

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Katz & Stefani

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Katz & Stefani, LLC
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Katz & Stefani, LLC
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