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Who Gets the Marital Home in an Illinois Divorce?

 Posted on September 30, 2019 in Illinois Divorce

Kane County divorce lawyersIn a divorce, the marital home is a considered a piece of property. As with all property in a divorce, the couple must consider what will happen to the home once the marriage is officially over. Due to its value and the fact that a home cannot truly be divided, divorcing spouses will often need to be creative in deciding how the home will be accounted for in the asset distribution process.

Separate and Marital Property

Under Illinois law, property in a divorce is classified in one of two ways: separate and marital. Separate property is any asset or debt that was owned by one person prior to the marriage. These types of property are generally not subject to division in a divorce, though there may be exceptions

On the other hand, marital property is any property or debt acquired during the marriage by either spouse, with limited exceptions for gifts and inheritances to one spouse. In most cases, the marital home is considered marital property.

Understanding Ownership of a House

It is not uncommon for divorcing spouses to discuss particular items within the family home before thinking about the difficult decision of what to do with the house itself. Objects such as furniture and appliances are easier to divide than a whole house.

When purchasing a home for the family, a couple can add only one name to the deed or they can elect to put both names on the deed. The name on the deed, however, does not affect the home’s status as marital property. If the home was purchased with marital assets--including the income of either spouse during the marriage, the home will almost certainly be part of the marital estate

With this in mind, the divorcing couple must decide together:

  • If the house will be kept or sold
  • Who will take ownership of the house if it is kept
  • How will the proceeds from selling the house be divided if it is sold

There are other cases in which a person buys a house before marriage and then his or her spouse moves in after the nuptials. In this case, the house would likely be considered separate property until or unless the significant other contributes to the maintenance of the property by means of mortgage payments or upkeep expenses.

Occasionally, a divorcing couple will decide to keep the house and own it together after the divorce. This is sometimes the case when a couple has children and the parents want to allow the children to live in the family home until a future time. The benefit to this decision is that the property value could increase the more time goes by and then they can share more income when they are ready to sell.

Contact a St. Charles, IL Divorce Attorney

Making a decision about the future of the marital home can be difficult depending on how long a couple spent making memories under one roof. It is not easy to agree with an ex-spouse about what should happen to the house, and sometimes, the court must intervene. The team at Weiler & Associates, Inc. can help guide you through the process and assist in the creation of an agreement that meets your needs. To schedule an appointment with an experienced Kane County divorce attorney, call our office at 630-382-8050.


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