If I Were King – Part I

Over the years I have mused on how I would improve both substantive and procedural rules in Illinois family law. The new “If I Were King,” blog posts shares a few of those thoughts. This is the first in that occasional series.

If I were king, I would change the Illinois law requiring divorcing spouses to live together unless one spouse seriously endangers the other. Under the current policy, the court cannot exclude one of the parties from the marital residence unless there is a showing of serious physical or emotional harm by one towards the other or toward the children. This never made any sense to me. Because of this rule, people use the Domestic Violence Act to get expedited hearings, exaggerating general meanness to domestic violence to in order to force their spouse out of the house. And who can blame them? Living together during the divorce is disconcerting to all members of the family. But that is not a good solution. When the Domestic Violence Act is applied for this purpose, courts then have to hear these matters when very real and urgent domestic violence issues may have to wait. Also, when less serious claims are brought before the court, the judges may grow a bit immune to the outrage of domestic violence. I would change the law to provide the court the discretion, considering the totality of the circumstances, to order one of the parties to move from the house. If the parties have the economic resources, a second home, or some other reasonable opportunity to separate, the court should have the power to order it without a showing of serious endangerment.

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