Understanding Exclusive Possession of Residence in an Order of Protection

 Posted on April 05, 2021 in Domestic Violence

Domestic violence is a serious and widespread problem in Illinois and throughout the United States., and it is important for victims and those under threat to know where they can turn for help. One of the most powerful shields from domestic violence is an order of protection issued by the court and enforced by local law enforcement. An order of protection can grant many different kinds of relief, including prohibiting an alleged abuser from engaging in abusive behavior or coming near a person or their children at work or school. Perhaps the most significant--and most complicated--form of relief is a grant of exclusive possession of the residence.

Considerations When Granting Exclusive Possession

In a legal proceeding involving an order of protection, the person requesting protection is known as the petitioner, and the alleged abuser is known as the respondent. When the court grants exclusive possession of the residence, this means that the respondent is ordered to stay away from the location where the petitioner lives, even when the respondent shares that residence and fully or partially owns or leases it.

In deciding whether to grant exclusive possession of the residence, the court will consider two important factors. First, the court must determine whether the petitioner has a right to occupancy of the residence. As the petitioner, you have a right to occupancy if you own or rent the residence on your own or with someone else, including the respondent. Even if you do not own or rent the residence, you may have a right to occupancy if the owner authorizes it. You also may have the right to occupancy if the person who owns or leases the residence is your spouse or someone who has a legal duty to support you or your child. In many cases, this means the respondent.

If the petitioner and respondent both have a right to occupancy, the court will then need to consider the balance of hardships to each party if exclusive possession of the residence is granted. If the respondent can demonstrate with substantial evidence that their hardship upon leaving the residence would be greater than the petitioner’s hardship due to the risk of abuse, the court may resort to a different solution, such as ordering the respondent to provide for a different residence for the petitioner.

What If I Have Been Ordered to Stay Away From My Home?

If you are the respondent in an order of protection granting exclusive possession of the residence, it is important that you follow its terms in order to avoid facing serious criminal penalties. However, you may ask the court to be allowed to return to your home one time, under escort, to collect certain important belongings. It is also important to note that if you are in the midst of a divorce, a grant of exclusive possession does not necessarily mean that the petitioner will be granted ownership of a residence that qualifies as marital property.

Contact a Will County Order of Protection Attorney

If you need assistance with petitioning for an order of protection, or if you have questions regarding how a protection order may affect your divorce or child custody proceedings, The Foray Firm can help. Contact our experienced Joliet family lawyers today at 312-702-1293.

Source:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2100&ChapterID=59&SeqStart=500000&SeqEnd=4200000