How to Divide the Marital Home During Divorce
If both parties lived in the house, it is a marital asset and will be split. Because Illinois is an equitable distribution state, the marital estate is not always split 50/50. The house cannot be physically split in half, so one party can keep it, it can be sold, or it can continue to be co-owned.
Dividing the marital home is a big undertaking with many factors to think about. You want to do it right, so here are some options to help you figure out what is right for you.
Options for Dividing the Home
The first step to dividing the home is figuring out whether or not you want it. If one or neither of you want it, the process usually goes much smoother.
There are three options for how to divide the home in your divorce:
- Sell the House
- Agree to a Buyout
- Co-Own the Home
If neither of you want to keep it, you can sell it. If one party wants to keep it, the other party needs to get something of equal value in exchange. And lastly, you can co-own the home with the other party.
Sell the House
If neither spouse wants to live in the house or if neither can afford to keep it on their own, parties can sell the house and split the profits. The biggest thing to figure out in this option is who is going to do the work of selling the house.
It is important to think about the financial implications behind selling the house. Things may need to be fixed before it can be sold, and a realtor needs to be found. The cost of these things usually come out of the marital estate. Furthermore, parties will also need to pay off the remainder of the mortgage, any home equity lines of credit, and be ready for the capital gains taxes from the sale.
This can be a great option for some people, but it can cause stress for the children or may not even be a suitable time to sell a house.
Agree to a Buyout
If one party wants to keep the home, the other party needs to be equitably compensated. The buyout can happen in a couple of ways, the party not keeping the house can
- Get other assets in exchange,
- Receive payments over time, or
- Not have to pay alimony if it was going to be ordered.
In some instances, parties may not have sufficient assets for an exchange to make sense. And while paying overtime may not be ideal, it may be necessary. For the last option, a party can keep the house as a form of lump-sum alimony, but this only makes sense if the other party would have been paying a substantial amount of alimony.
There are also risks that come with one party keeping the home.
- The buyer may end up paying too much if the value of the house depreciates.
- The seller may end up losing out on equity if the value of the house increases over time.
Be sure to think about all the factors when deciding on how to divide your home. One key factor to consider is how it will affect your future and your child’s future.
Co-Own the Home
One of the more complicated options is to continue to co-own the home. This is usually only good for two situations: people who want to wait to sell the house in a better market or those who want to let the kids keep living there and the parents take turns living there.
First, if the current market isn’t good for sellers, you may want to wait to sell the home until you can make a better profit. While this option may seem appealing, it keeps you financially linked to the person you are trying to separate yourself from.
Another reason people choose this option is if they are worried about the strain moving will put on your children. You can continue to co-own the home and then you and the other party can take turns living in the house while the children stay. Rather than the children moving back and forth with the placement schedule, you and the other party move back and forth. Co-owning the home in this way is a unique way to create a healthy co-parenting relationship.
Things to Consider When Deciding
There are some key questions to consider when deciding what to do with the home:
- Do you want to stay in the place that housed your marriage?
- How will a move impact your children?
- Do you have the means to finance the home on your own?
- Is now a suitable time to sell the house?
- Is keeping the house a good financial investment?
- Do you have any other assets financially tied to the home?
- Do you know the process of selling a home?
If you aren’t sure what to do, answer these questions for yourself and see if they point you to a certain path. If you want help figuring out what is best for you or if you want help with any part of the divorce process, call Sterling Lawyers, LLC.
The House During the Divorce
Who gets to stay in the house during the marriage is determined at a temporary order hearing. Under Illinois law, a party can only be kicked out by court order and the court will only order it if not doing so would harm the physical or mental well-being of a spouse or child. The order can determine whether a party should have sole access to the home and if a party needs to be kicked out.[1] But this is only a temporary order, so the final order could be different.
For Immediate help with your family law case or answering any questions please call (312) 757-8082 now!
Considerations
What if Both Parties Want the House?
If both parties want the house, they first try to come to an agreement together. Parties can discuss why the house is important to them and look for other solutions for what the other person could have instead. One option that may be good to look at is co-owning the home if both parties want the home for parenting time.
If neither party is willing to cave, they go to mediation. Mediation is trying to come to an agreement with the help of a third party. If the parties cannot come to an agreement still after that, then the court will decide for you.
Does a Prenup or Postnup Affect Who Gets the House?
If a prenuptial or a postnuptial agreement outlines what should happen to the house in a divorce, then yes, it can affect who gets the house. These types of agreements are not always solid so make sure you have an attorney when you create an agreement and when it is being enforced.
Can I Keep the House if I Owned It Before the Marriage?
If you owned the home before the marriage, it may have become marital property because both parties lived in it. So, you could keep it, but there is no guarantee that it will be yours.
Frequently Asked Questions
How is a house split in a divorce in Illinois?
What happens to the house is determined in the property division process of a divorce. The easiest way to split the house is to sell it and split the profits. Another option is for one party to keep the home and for the other party to keep a different asset of similar value.
What happens to the house in a divorce in Illinois?
What happens to the house depends on what you and the other party decide. You first try to come to a conclusion that you both agree with. If you can’t find a solution, then you get the help of a mediator. And if there still isn’t a good solution, then the court will decide for you.
Who keeps the house in a divorce Illinois?
Usually, the party who has the majority of parenting time keeps the house. This is because the court doesn’t want the kids to have to go through even more changes than they are already seeing. For child custody issues, the courts look to rule in the best interest of the child.
Is my wife entitled to half my house if it's in my name?
Even if the house is in your name, the other party may be entitled to half of it. However, if you had the house before the marriage, it may be considered non-marital property. Illinois is an equitable division state, so they only give the other party half of the property if they deserve it based on what they added to the marital estate.
Who usually wins the house in a divorce?
If both parties want the house, the parent who is getting the majority of the parenting time usually keeps it. If there are no children in the divorce, then the person who has more claim to it usually keeps it.
How is home equity calculated in a divorce?
Once both parties agree on how much the house is worth, you subtract what is still owed on it, and what is left is the equity. As long as the number is positive, that is the profit that will be made from selling the house.
Reference: 1. 750 ILCS § 5/501 (c-2). Property, Support, and Attorney Fees.