Who keeps the apartment in a divorce if both refuse to leave?

Asked over 3 years ago - Chicago, IL

Good day.
My sister plans to file for divorce on the grounds of habitual drunkenness. Both she and her husband of three years refuse to leave their rental (lease runs for 6 more months). Who retains the home in this case? She is more emotionally stable, but they are roughly the same from a financial perspective. They have no children or property (aside from household goods).
She would like to find a flat-fee attorney to handle her case, but fears this point could turn an uncontested divorce into something more expensive, as she has limited funds. ((Any recommendations on good attorneys who can handle this case for under $1000 -- Northside or Loop areas??))

Thank you!!

Attorney answers (4)

  1. Alan James Brinkmeier

    Contributor Level 20

    Answered . No quality attorney will take a contested dissolution of marriage case for a flat fee let alone for a fee of $1000. That ranges between 4 and 6 hours of work. That is not going to happen.

    Now, if you think things will get contested, you can try and find an attorney willing to clear his or her calendar, because such contested dissolutions of marriage are quite time consuming.

    But, you get what you pay for. If you go it alone, expect to lose at every turn.

    These court litigated matters are not as simple as they appear on TV when every dispute is investigated, vetted and wrapped up in an hour. In real life, it does not work that way.

    Good luck.

  2. Stephen Samuel Messutta

    Contributor Level 16

    Answered . First, your understanding of this complex area of the law is so limited I hope the limit of your involvement will be simply to lead your sister to see a licensed attorney who does divorces; the rest is up to her. Second, depending on economic disparities and circumstances, the to-be-ex may be required to pay for her attorney fees so any discussion of fees is premature. Beyond that, flat fee for a divorce? $1,000? I won't even begin to comment but if any legitimate attorney agrees to to so, beware. And even if the GROUNDS may be uncontested (and you don't even know that), how Property is divvied up is usually where things can get ugly.

    Setting that aside, the question is does she want the place, or not. That's the starting point. If she wants him to move out, or vice versa. If she can't afford it, she may want out.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is currently licensed to practice law actively only in the State of Illinois, inactively in Florida. Responses are based solely on Illinois law unless stated otherwise.

  3. Patrick Byron Markey

    Pro

    Contributor Level 12

    Answered . Sounds like it would lean in her favor is the court held a hearing on exclusive possession.

  4. Adam Christopher Gynac

    Contributor Level 8

    Answered . If I understand your question correctly, you are asking, who would be able to remain in the home to live there, if your sister and her husband got divorced, through the remaining six months of the lease? (because presumably neither party owns that property; they are just renting space, as I understand it)

    There would be a variety of factors that could come into play in such a decision. Unless one party or the other was willing to file a motion for exclusive possession (which is a petition asking the court to allow them to be the only ones to live there), the most likely answer is that both parties could be allowed to continue to live there until the lease was expired, and then each would have to move somewhere different at that point. People can still live together for a period of time, even after they are legally divorced; that can even be stipulated in the terms to settle a case, based on the circumstances.

    Motions for exclusive possession, on the other hand, are ordinarily filed once a divorce has already commenced, and there are certain things that the petitioner would need to demonstrate to the court to be awarded the sole use and possession of that rental through its term.

    Lastly, the other contributors are correct on their comments regarding attorney's fees. Most reputable divorce lawyers will require a minimum retainer of anywhere from $2,000.00 - $5,000.00 up front to take a new divorce case, depending on the issues presented, and will bill hourly for their time, first to be taken out of that money, and then to be billed month to month thereafter. There are relatively few good divorce lawyers working on a flat fee basis, and almost certainly not for only $1,000.00.

    I hope that answers your question!

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