Who Has To Move Out During a Divorce in Illinois?

 Posted on April 15, 2026 in Divorce

Many couples don’t want to be stuck under the same roof while going through the divorce process. This is understandable and even healthy. But if both of your names are on the contract for wherever you live, be that a house or apartment, how do you decide who stays and goes? Is one of you legally entitled to stay?

In most cases, no, there aren’t laws that state who stays or goes. Still, a decision must be made. If you’re planning to get divorced in 2026 and have questions, a Winfield divorce lawyer can help.

Does One Spouse Have To Move Out During a Divorce in Illinois?

Illinois does not automatically require either spouse to vacate the marital home just because a divorce has been filed. Both spouses generally have an equal right to stay in the home, especially if both are on the lease.

For this reason, couples who want to live separately generally find some arrangement that makes sense to them. This could be the person who pays more on the rent or mortgage, and gets to stay. It could be that whoever is the primary caretaker of the children gets to stay to avoid disrupting their lives more. There’s no one way for the decision to be made.

That being said, there are some situations where a court can actually order a spouse to vacate the home.

When Can a Court Order a Spouse To Leave Their Home During an Illinois Divorce?

A judge can issue an exclusive possession order requiring one spouse to vacate the home. Typically, it’s for one of the following reasons:

• Domestic violence or a credible threat of harm
• Behavior that seriously disrupts the well-being of the household members, especially when children are present
• A showing that continued cohabitation causes undue hardship

Under 750 ILCS 5/501(c), the court may grant exclusive possession of the family home to one spouse while divorce proceedings are happening if there is just cause. If there's been physical violence or harassment, an emergency order of protection may also be available. This can remove a spouse more quickly.

How Can I Prove That Living Together Is Causing Undue Hardship During My IL Divorce?

To pursue exclusive possession of the marital home on the grounds of undue hardship, you'll need to show that living together is causing more than the ordinary stress of divorce.

Evidence that may support an undue hardship argument includes:

• Documented incidents of harassment, intimidation, or hostile behavior in the home
• Evidence that the conflict is negatively affecting your children's well-being or school performance
• Medical or mental health records showing that the living situation is harming your physical or psychological health
• Testimony from witnesses, including family members, teachers, or healthcare providers
• A pattern of behavior that makes it extremely difficult to continue living together

If you're considering leaving voluntarily to reduce conflict, talk to your attorney before you do. Moving out can affect how courts view temporary custody arrangements and may create the appearance that you've abandoned your interest in the property.

Who Gets To Stay in the Marital Home After Divorce if You Have Children in Illinois?

If a petition has been made to make one parent move out and children are present, the question of who the court will allow to stay in the home becomes closely tied to custody. Courts in Illinois prioritize the best interests of the child, including stability in their home life. If one parent has been the primary caretaker, a judge is more likely to allow that parent to remain in the home.

It’s generally preferable for children to stay in their house while divorces are underway. Divorce is stressful on everyone, but especially on children. If your spouse is refusing to move out and you’re the primary caretaker, asking the court for an exclusive order of possession may be the right move.

Call a Wheaton, IL Divorce Lawyer Today

If you're trying to figure out your living situation while navigating a divorce, don't make decisions without legal guidance. At Hensley Sendek Law, our Winfield divorce attorney brings experience from complex divorce cases involving high-asset situations, business valuation, and international child removal matters. Call 630-358-9029 to schedule a free consultation.