Understand what to expect when dividing assets after a divorce
Divorce can bring many changes, especially when it comes to dividing assets. In Illinois, the family home is often one of the most valuable possessions and a key point of discussion during the divorce process. Understanding how the house is handled under Illinois law can help both spouses plan for the future.
A knowledgeable Illinois divorce lawyer can offer guidance and legal support
An experienced Illinois divorce lawyer can guide you through the process, so you understand what to expect post-divorce. Contact a lawyer in Illinois today to schedule a free consultation, ask questions, and explore your options moving forward.
How does Illinois divide property in a divorce?
Illinois follows an equitable distribution system for dividing property. Unlike states that split assets 50/50, Illinois courts divide property based on what is fair. This doesn't always mean an equal split but rather a division that considers several factors to ensure fairness.
Marital property includes assets acquired by either spouse during the marriage, while non-marital property generally covers what each spouse owned before the marriage, as well as any gifts or inheritances received by one spouse alone. The family home is typically considered marital property if it was purchased during the marriage, even if only one spouse’s name is on the deed.
What factors determine who gets the house?
Illinois courts examine various factors when deciding what happens to the house in a divorce. These include:
Each spouse’s contributions to the property
The court considers both financial and non-financial contributions that each spouse made during the marriage.
This includes monetary payments toward the mortgage, property taxes, and home improvements, as well as non-financial efforts like maintaining the property, managing household duties, or supporting a spouse's career.
Length of the marriage
The duration of the marriage plays a key role in determining how the property is divided. Longer marriages often involve a more complex division of assets, as spouses may have built a life and accumulated property together over time.
The longer the marriage, the more the court is likely to view the marital home as a shared asset. In such cases, even if one spouse made most of the financial contributions, the other spouse’s non-financial contributions (such as raising children or managing the household) are likely to weigh heavily in the court’s decision.
Financial circumstances
The court will assess each spouse's financial situation, including their current income, earning capacity, and overall financial stability. This helps determine whether one spouse may need additional financial support or if both parties can independently maintain their own financial well-being.
The court may consider a spouse’s employment history, the likelihood of securing a stable income post-divorce, and any financial hardships they may face. If one spouse earns significantly more than the other, it could impact the division of the family home.
Contributions of each spouse
Contributions to the property aren’t limited to direct financial payments such as mortgage installments. The court also considers non-financial contributions, such as caring for children, managing household duties, or supporting a spouse's career.
These contributions are given weight, especially in cases where one spouse may have sacrificed career opportunities or income potential to support the family in non-financial ways.
Future earning potential
If one spouse is expected to have a higher income or stronger career prospects after the divorce, the court may consider this when dividing the marital assets.
For example, if one spouse stayed home to raise children and is now re-entering the workforce with limited opportunities, they may be entitled to a larger share of the property or financial support to account for their diminished earning potential.
On the other hand, if a spouse is on track for substantial future earnings, the court might consider this when deciding how to distribute property fairly.
Custody arrangements
When determining which spouse will retain the family home, the court often prioritizes the children's best interests. If one parent is awarded primary custody, the stability of keeping the children in their familiar environment may influence the decision.
The parent with primary custody may be allowed to remain in the family home to provide continuity and security for the children, particularly if moving would disrupt their schooling or social lives.
Debts tied to the property
The court will examine any outstanding debts associated with the property, including mortgages, home equity loans, or liens. If one spouse is financially capable of handling the mortgage or other debts tied to the home, they may be more likely to retain the property.
On the other hand, if neither spouse can feasibly manage the debt, the court might order the property to be sold and the proceeds split between the parties after paying off any outstanding obligations.
Pre-nuptial or post-nuptial agreements
A valid pre-nuptial or post-nuptial agreement can significantly affect how the marital property, including the home, is divided. If the couple entered into a legally binding agreement before or during the marriage that outlines how assets should be divided in the event of a divorce, the court will generally adhere to those terms.
However, the court may still review the agreement to ensure it is fair and was not signed under duress or without full disclosure of assets. If deemed valid, the agreement will guide the division of property, potentially overriding state property division laws.
What are the options for dividing the house?
When it comes to the house, there are typically four main options. These include:
Selling the house and splitting the proceeds
In many cases, divorcing couples choose to sell the house and divide the sale proceeds. This option lets both parties walk away with cash and a clean slate. After paying off the mortgage and any fees, the remaining funds are divided between the spouses.
Selling the house can be a practical choice, especially if neither spouse can afford to maintain the home alone. However, selling may take time, and disagreements about the listing price or offers may arise.
One spouse buys out the other
Another common option is for one spouse to buy out the other’s share of the home. This involves refinancing the mortgage so the spouse keeping the house can take over full ownership. The spouse who is bought out receives a fair portion of the home’s equity.
A buyout can be beneficial if one spouse wants to stay in the home, especially if children are involved. However, refinancing can be difficult if the spouse staying in the home doesn’t qualify for a new mortgage or can't secure the funds to buy out the other spouse.
Co-ownership after divorce
In some situations, ex-spouses may agree to continue owning the house together for a set period. This arrangement is often temporary, giving both parties time to decide when or if to sell. For example, they may agree to keep the house until the children finish school.
While co-ownership offers flexibility, it can lead to complications. Ex-spouses will need to decide how to share the costs of maintaining the home, pay the mortgage, and address repairs. If they don’t agree on these issues, conflicts can arise.
Awarding the house to one spouse
In certain cases, the court may outright award the home to one spouse. This often happens when one spouse is the primary caregiver for the children, and keeping the children in the family home is seen as important for their stability.
If the court awards the house to one spouse, the other spouse may receive other assets (e.g., savings or retirement accounts) to balance the division. This option is most likely when one spouse has a significantly greater financial need or attachment to the home.
What happens if the house is non-marital property?
If the house was purchased by one spouse before the marriage or was received as a gift or inheritance, it might be classified as non-marital property. Non-marital property typically belongs to the spouse who acquired it and is not divided during the divorce.
However, things can get more complicated if the house was used as the marital home or if both spouses contributed to its upkeep or mortgage payments. When non-marital property is mixed with marital funds, the court may consider the house partially marital. This means some portion of the value could be divided between the spouses.
How can mediation help resolve disputes over the house?
Divorce decisions can impact your future for years, from property division to child custody. That’s why having an experienced Illinois divorce lawyer makes all the difference. They’ll protect your rights and guide you every step of the way, ensuring your unique needs and goals are prioritized.
With the right legal support, you can make smart decisions that benefit you in the long run. A knowledgeable attorney can help you get the best outcome and provide peace of mind during this challenging time. Contact an experienced Illinois divorce attorney today to set up a free consultation
