Your home is likely very important to you, even while going through a divorce. Perhaps you both want the house, or can’t agree whether to sell it and move to something different. But who between you will actually get the house? The answer to your question will depend on many different things. Maybe you can come to an agreement, or the court may have to decide based on many factors. Knowing what to expect and what your options are can help you move forward in dividing this important asset during divorce.
At Kulerski & Cornelison, our team serves families in DuPage and Cook counties. Our attorneys guide you through the complicated divorce process and help ensure your marital home gets the attention it deserves. Give us a call today to get started.
Marital vs. Non-Marital Property
Illinois uses the equitable distribution model when making decisions about dividing assets. The court divides the property fairly, but not necessarily equally. When it comes to your house, the court must first identify if the property is marital or non-marital.
What is Marital Property?
Marital property is most of the stuff and assets you acquired during your marriage. It often matters little whose name is on the title. So, as to your home, if it was purchased while the two of you were married with your joint assets, it will likely be considered marital property.
What is Non-Marital Property?
Non-marital property is your own, and not of the marriage. This most commonly applies to assets you owned before you were married. If you owned the home in your name before you were married, it is more likely non-marital property. Or, if it was inherited during your marriage, it could still be non-marital.
Can a Separate Property Home Become Marital Property?
Yes, a home that started as separate property can become marital property. Using marital funds to improve or re-mortgage the home, for example, could result in all or part of the property becoming a joint marital asset.
Equitable Distribution in DuPage County
If the court finds that the home is marital property, it will then have to divide it. The court considers several factors, including:
- Each spouse’s contribution to the home
- Whether each spouse helped preserve the property
- Whether a contribution improved the home’s value
- Whether the parties incurred joint debt on the property
- The duration of the marriage
- The economic circumstances of each spouse
- Custodial arrangements for minor children
- Whether one spouse will receive spousal maintenance
- Any dissipation of assets by either party
Options for Dividing the Home
There are several ways the marital home may be handled in a DuPage County divorce:
1. One Spouse Keeps the Home
If one spouse wants to remain in the home the court may award the house to that spouse. The other spouse may receive other marital assets or a cash buyout to offset the value.
2. Sell the Home and Split the Proceeds
In many cases, the court orders the home to be sold and the net proceeds divided equitably. This is common when neither spouse can afford to keep the home on their own.
3. Deferred Sale
If minor children are involved, the court may allow the custodial parent to remain in the home temporarily, with a sale deferred until a later date. However, these orders usually require agreement or special circumstances before a court will grant this arrangement.
What If the Home Is in One Spouse’s Name?
Even if the home is titled in one spouse’s name, it may still be considered marital property if it was acquired during the marriage or maintained with marital funds. Title alone does not determine ownership in Illinois divorce proceedings.
Protecting Your Rights to Your Home in an Illinois Divorce
If you’re facing divorce in DuPage County, it’s critical to work with a family law attorney who understands the nuances of Illinois property division. An experienced lawyer can help you:
- Determine whether the home is marital or non-marital
- Assess the value of the home and any equity
- Negotiate a fair settlement or advocate for your interests in court
Get Help With Your House in an Illinois Divorce
There are many factors and rules that impact who will ultimately get the house in your divorce. We help you examine your life and how it will impact this decision. Our lawyers are strong negotiators who help you seek a resolution that works best for you both, and excellent litigators if you can’t get the other spouse to agree.
At Kulerski & Cornelison, our family law attorneys are ready to help. Contact us today for a consultation of your case.