You and your spouse are going through a lengthy divorce. For the good of the children, you opt for a nesting agreement in which the children remain in the marital home while you and your spouse take turns living with them.
While nesting arrangements may start off with the best of intentions, they can go badly awry—and it’s not easy to get out of one once you’ve started. A Court will grant exclusive possession to one spouse only upon a finding of "jeopardy." And jeopardy can be a pretty tough standard to meet.
Under Illinois law, a court can only remove someone from a marital residence during a divorce where "the physical or mental well being of either spouse or their children is jeopardized by the occupancy of the marital residence by both spouses." (750 Illinois Compiled Statutes 5/701.) Merely suffering from a great deal of stress may not be enough to change the arrangement.
In a recent Illinois case, a lower court ended a nesting arrangement by giving exclusive possession to the wife. (See <a href="http://www.state.il.us/court/opinions/AppellateCourt/2012/1stDistrict/1112567.pdf"> People v Levinson</a>. The wife alleged that the arrangement created much tension, the husband left the home messy, plus she had nowhere else to live and thus no privacy. The lower court agreed that the arrangement was highly stressful for both mother and children, and that it was a source of the parties’ power struggles. Yet, the Appeals Court overturned the lower court’s order giving the wife sole possession of the home. The Appeals Court found that the parties’ stress did not jeopardize their mental or physical well being enough to justify ending the nesting agreement.
Prior case law has justified exclusive possession where the husband beat the wife and threatened her with a gun. But in another case, the court found that a single incident of nonconsensual sex and the worsening of the wife’s diabetes due to stress was not sufficient to make a change.
If you do want to try nesting, you should have some of the same skills necessary for successful joint parenting. If you basically agree on most parenting issues and get along well in every respect except being married, you might be able to succeed at this arrangement. However, even petty stresses such as cleaning up after the other spouse’s stay can make nesting a difficult arrangement.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
