When we speak with clients at the start of the divorce process, one of the most common questions we hear is, “Should I move out of the house now, or wait until the divorce is finalized?” It’s a question that deserves careful thought. Emotions may be high, and you may feel like putting physical space between yourself and your spouse is the best way to avoid conflict. But under Illinois law, your decision to stay or leave the marital home can have legal and financial consequences that are important to understand before making a move.
In Illinois, both spouses have equal rights to the marital residence, regardless of whose name is on the deed or lease. This means that unless there is a court order, one spouse cannot force the other to leave the home. In some cases, moving out may affect your rights related to property division, parenting time, or financial responsibilities under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.). That’s why we often advise clients to speak with an attorney before making any decisions about leaving the home.
Under Illinois law, marital property is divided equitably—not equally—based on factors listed in 750 ILCS 5/503. The home is often the most valuable marital asset, and courts consider who is using the property during the divorce when deciding how to divide it. If you move out voluntarily, you are not giving up your share of the equity, but you may complicate the process of proving your financial interest or your role in maintaining the property.
If there are children involved, the decision to stay or leave can also impact your parenting case. Courts prefer to maintain stability for children during a divorce. Under 750 ILCS 5/602.7, courts allocate parenting time based on the best interests of the child. If you move out and the children remain in the home with your spouse, that arrangement may become the temporary status quo, which could affect your custody negotiations later.
There are situations where leaving the home is the safer or more practical choice. If there is a risk of domestic violence or emotional abuse, your safety and the safety of your children should come first. In such cases, we can assist you in obtaining a court order of protection under 750 ILCS 60/214, which may remove your spouse from the home and grant you temporary possession.
If conflict is constant and daily life in the home becomes unmanageable, it may also make sense to move out. But we strongly recommend you speak with a divorce attorney first to understand how your move may affect your divorce.
Illinois courts have the authority to award temporary possession of the home during the divorce process. This can happen through a motion filed by either party. The court considers each spouse’s needs, who is caring for the children, and the financial circumstances of both parties.
Temporary possession does not determine permanent ownership—it is meant to help manage day-to-day life while the divorce is pending. You still retain your legal rights in the final division of property, regardless of who remains in the home during the case.
No. Moving out does not mean you lose your financial interest in the home. However, it may make it harder to prove certain claims, such as maintaining the home or caring for the children, which can impact the outcome.
Not without a court order. In Illinois, both spouses have equal rights to remain in the home unless a judge orders otherwise, such as through an exclusive possession order or order of protection.
If you are in danger, we can help you request an order of protection. A judge can grant you exclusive possession of the home if there is a credible threat to your safety.
It depends on the circumstances. If you leave with the children without a custody agreement in place, the court may later question that decision. We recommend getting a temporary parenting time order first.
Possibly. Courts look at the child’s current living situation and who is providing daily care. If you move out and your spouse becomes the primary caregiver, that may influence custody decisions.
Yes. You can file a motion for temporary possession. The judge will consider your financial situation, living arrangements for any children, and other relevant facts.
Not necessarily. The court may order temporary spousal support or require both parties to share household expenses during the divorce.
The house may be awarded to one spouse or sold, with the proceeds divided. The court considers factors like child custody, income, contributions to the property, and each spouse’s financial needs.
No. Illinois is a two-party consent state. Recording without permission can be illegal and may hurt your case. Always speak with an attorney before taking any such steps.
Even if your name is not on the title, you may still have a claim to the property if it was acquired during the marriage. Illinois law treats it as marital property, subject to equitable division, unless your spouse can show it is non-marital property.
At Gordon & Perlut, LLC, we understand how personal and stressful it is to decide whether to stay in your home during a divorce. We will take the time to review your situation and explain how your decision may impact your rights, your children, and your future.
If you’re facing divorce, contact our Chicago divorce attorney at our Chicago office at 312-360-0250 or our Skokie office at 847-329-0101 to arrange a free consultation. We represent clients throughout Illinois.