When you are in the planning stages of your Illinois divorce, or you are considering the possibility of filing for divorce in the Chicago area, you are probably thinking carefully about where you and your spouse will live, and what will become of your home. In particular, you may be wondering if you should encourage your spouse to move out of the house during the divorce, or if you should move out of your marital home. You might also have concerns about whether your decision to move out could ultimately affect your ability to keep the house in the divorce, or could impact your property distribution.
When you and your spouse are thinking about who should move out during the divorce, there are a number of considerations to think about.
If you are currently sharing your marital home with your spouse, you should know that one of you will most likely need to move out of the house in order to meet the requirements for divorce under Illinois law. While the Illinois Marriage and Dissolution of Marriage Act (IMDMA) does not expressly require the spouses to determine which of them will move out of the marital residence, the parties will need to meet the requirement for “irreconcilable differences” in order to be eligible for a divorce. Specifically, the court must find that “irreconcilable differences have caused the irretrievable breakdown of the marriage.”
The IMDMA clarifies that there is an irrebuttable presumption that this requirement has been met when the spouses have lived separately for at least six months. Accordingly, to meet the irreconcilable differences requirement, one of the spouses will likely need to move out.
Many spouses do not want to move out of the house because they are concerned that they will lose their rights to the residence during property division, or that they will lose the ability to keep other assets during the distribution of marital property if they have willingly left the marital home. It is important to understand that neither of these concerns will happen. When the court is distributing marital property and the marital residence in particular, it does not consider whether one of the spouses moved out.
When the court considers the marital residence in factors for property distribution, the IMDMA specifies that the court simply considers the best interests of the children. That often means that the family home will remain with the spouse who has custody of the children.
When you are deciding who should move out of the house, you should consider a number of factors, including finances, costs, needs, and parental responsibilities. Our divorce attorneys in Illinois can help you and can answer your questions today. Contact Arami Law, Inc. for more information about the divorce process.
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