Should I Move Out Before Filing for Divorce?

 Posted on August 15, 2018 in Divorce

If you and your spouse are having serious problems in your marriage, one of you may decide to find another place to stay while you figure out what to do next. You might, for example, stay with a family member so that you can gather your thoughts about how to proceed. This practice is so commonplace that most couples would not even consider a divorce while still sharing a home.

Just because something is a common practice, however, does not mean that it is a legal requirement. In fact, it may come as surprise to learn that Illinois law does not require any period of separation in most divorce cases.

Knowing the Law

Prior to 2016, a couple seeking a divorce on the grounds of irreconcilable differences—colloquially known as a “no-fault divorce”—was required to live separate and apart for two years before the divorce could be finalized. By agreement of the parties, the separation period could be lessened to six months. While Illinois courts found that “living separate and apart” could theoretically occur under the same roof, most cases saw one spouse or the other move out the marital home for at least half a year prior to the divorce being finalized.

In 2016, Illinois lawmakers eliminated all fault grounds for divorce, leaving irreconcilable differences as the only remaining grounds. To accommodate the change, the law was also amended to eliminate the separation requirement. Today, a couple who agrees that the divorce is the best course of action can proceed immediately. If the spouses do not agree, however, the court will recognize a six-month period of living separate and apart as clear, irrebuttable proof of irreconcilable differences.

Possible Risks

It is important to keep in mind, however, that moving out may carry some risks for the purposes of the divorce, especially in regard to the marital home and parental concerns. If you move out without a written agreement with your spouse, he or she could ask for the home in the divorce simply because you left. Many divorce judges try to avoid upsetting the status quo, so if you allow your spouse and children to stay in the home when you leave, a judge could make that arrangement permanent.

Similarly, moving out could be spun by your spouse’s attorney in such a way that it makes you look like that your comfort was more important than being present for your children. If you are there for bedtime or meals—regardless of your true intentions—you could be made to look like an uninterested parent.

We Can Help

If you are considering moving out of your marital home, your first call should be to an experienced Lombard divorce attorney. We can help you make the best possible decisions for your situation. Call 630-426-0196 for a confidential consultation at A. Traub & Associates today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=0

https://www.huffingtonpost.com/joseph-e-cordell/moving-out-after-divorce_b_5510895.html