Does Moving Out Hurt Your Edwardsville, Illinois Divorce?

 

Divorce is a complex and emotionally charged process. One of the most common concerns for separating couples is the impact of moving out of the marital home on property division. Many fear that moving out will hurt their Edwardsville, Illinois divorce. They fear it will negatively affect their rights regarding the house and other marital assets. Or, they think if they throw the other person out, they will automatically get all of the equity in the house. Illinois law does not work that way – or at least has not since I started practicing law in 2003. Never once have I tried a case where the Court considered the equity in the house abandoned by the party that moved out (or was kicked out).

 

This blog post explores this topic in the context of Illinois law, specifically focusing on 750 ILCS 5/503, the statute that governs the division of marital property. I will discuss the misconception of abandonment and clarify your rights related to marital equity, even if you’ve moved out.

 

The short answer is moving out will not hurt your Edwardsville, Illinois divorce (in most cases)

 

The most common misconception is that moving out of the marital house means abandonment. Its a myth that has persisted throughout my career. However, Illinois law (750 ILCS 5/503) doesn’t consider simply moving out a factor in dividing marital property. The focus lies on fairness and considering various factors to ensure an equitable distribution.

 

I get asked all the time about the idea of abandonment. After 20+ years practicing family law and reading appellate decisions, I have never seen a divorce case that centers on the issue of property abandonment. While I cannot say I have seen or read every case in the State of Illinois, abandonment isn’t the issue some people think it is.

 

Where did the concept of abandonment come from?

 

In the 1900s, the Illinois Legislature passed the Rights of Married Women Act, which is now known as the Rights of Married Persons Act. The Act has two parts:

• married people can own property and have bank accounts in their sole name. This law, when passed, allowed married women to inherit from their family, open a bank account without their husband’s permission and to have financial independence
• It also allows creditors, such as doctors, hospitals, rental companies, and banks to sue both spouses in some circumstances.

 

The Act was passed at a time when Illinois Divorce was only possible in very limited circumstances, making it nearly impossible to exit a bad marriage. One spouse would often leave the other and abandon the marriage. In the case of women specifically, very few had education or work experience sufficient to support themselves without the help of a spouse or charity. Because this was a pretty rampant problem 100+ years ago, the Legislature wanted a mechanism for service providers, such as doctors and grocers, to be paid for providing life’s basic necessities from the spouse with money. This is in part because all assets in a marriage were likely marital property and the creditors needed a law that allowed them to go after the marital funds. So this is where the concept came from.

 

And yes, the law still exists. It allows married people to still open a bank account without the other spouse being on it. Its most often applied to issues of medical insurance. If a spouse cannot get insurance and the other has it, the spouse without the medical insurance can petition the Court for an Order to be forcibly put on the other person’s insurance.

 

Here’s why moving out doesn’t equate to abandonment:

Spousal autonomy: You have the right to choose where you reside, even during separation.

Financial reasons: Sometimes, moving out may be financially necessary due to affordability concerns or emotional safety.

Temporary separation: You may intend to reconcile or eventually return to the home.

 

Factors Influencing Marital Equity Division (750 ILCS 5/503)

While moving out doesn’t automatically affect your rights, several factors influence how the court divides marital equity. 750 ILCS 5/503 outlines the factors a court considers when dividing marital property. Here are some, but not all, of those factors:

 

• The contribution of each spouse to the acquisition, preservation, or increase or decrease in value of the marital property (e.g., inheritances, gifts, prior ownership).

 

• The length of the marriage.

 

• Contribution to appreciation: Did one spouse contribute to home improvements that increased its value?

 

• The age, health, station, occupation, circumstances, and needs of each party.

 

• The parenting provisions for any children.

 

• What’s not included? Whether you resided in the home or not. The court focuses on the overall contributions to the property’s value throughout the marriage, not just who lived there at the time of separation.

 

Moving Out: Potential Advantages and Disadvantages

While moving out doesn’t directly affect your claim to marital equity, there are potential advantages and disadvantages to consider:

Advantages:

 

1. Reduced tension: Living apart during separation can alleviate conflict.
2. Establishing independence: It allows time to adjust financially and emotionally.
3. Safety considerations: In cases of domestic violence, moving out may be essential for safety.

 

Disadvantages:

 

1. Maintenance burden: If you remain on the mortgage, you’re still responsible for payments even if you’re not living there.
2. Impact on parenting: Moving away may affect your access to children and parenting arrangements.

Recommendations for Protecting Your Rights

 

Even though leaving the house doesn’t automatically forfeit your claim, here are some proactive steps you can take:

1. Document financial contributions: Maintain records of premarital ownership, mortgage payments, and home improvement expenses.
2. Seek legal counsel: An experienced divorce attorney can help you understand your rights and navigate the legal aspects of property division.
3. Maintain open communication: Discuss your intentions with your spouse and attempt to reach a fair agreement regarding the house if possible.
4. Prepare for the possibility of selling the home: Research market trends and consider the potential costs and timeline involved.

 

When Moving Out Can Hurt your Edwardsville, Illinois Divorce

 

There are some occasions when it could hurt your case, such as:

 

1. The person moved out years prior and has not contributed to the mortgage or house’s upkeep since
2. The house has fallen into bad shape because someone moved out
3. The bank forecloses on the house because the mortgage is not paid

 

Conclusion

 

Moving out of the marital home doesn’t automatically affect your share of marital equity in Illinois. In other words, moving out does not mean that the house is automatically given to the other person. If the law was that simple, people would routinely throw the other spouse out in order to win. The law does not usually favor sneak attacks, and instead, like most situations, is based on a thorough understanding of the facts. To do this, the court considers various factors outlined in 750 ILCS 5/503 to ensure a fair distribution.

 

I am ready to help you with your uncontested, negotiated or collaborative divorce. In 20 years of practice, I have helped clients navigate moving out, issues of division of the equity in the house and helping them move on to their new future. Contact me through my website or call me to see if I can help.

 

This blog post is for informational purposes only and should not be construed as legal advice. Always consult with an attorney to discuss your specific situation and understand how Illinois law applies to your unique circumstances