Does a spouse who was removedfrom the home dueto assaulting the other spouse, have the right to return after a restraining order has expired?

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Does a spouse who was removedfrom the home dueto assaulting the other spouse, have the right to return after a restraining order has expired?

She assaulted him and an RO was issued. She left the home under police escort about 4 months ago. Judge just refused to renew RO. He is living in home he rents from his deceased parents’ estate, which he will eventually inherit. She has not paid rent (has been unemployed over a year due to drinking)and is not an heir to the estate. They are still legally married because the sheriff has failed to serve her with divorce papers that he filed. Since the RO is no longer in effect, can he legally lock her out of the house and have her arrested for trespass if she shows up?

Asked on July 5, 2011 under Family Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You write that he rents the home from his parent's estate. The key issue is whether she is also a renter or tenent, or had been residing there as a guest with him. If the answer is "yes," then he cannot lock her out, though the estate (as the home's owner and landlord) may be able to. (They could if she violated lease terms, or if she was a month-to-month tenant or a guest, on proper notice that her occupancy has been terminated). On the other hand, if she had not been residing there and is not a tenant, then he does not have to let her in the home--the fact that two people are married does not automatically mean that one has the right to enter property rented by the other. So the key issue is likely whether she has some right reside in or occupy that premises, independent of the marital relationship.


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