If you are contemplating a divorce and you own your home, one of your biggest property-related questions about the divorce process is probably, “Who gets the house in an Illinois divorce?” For most couples, their home is one of their most significant assets – if not the biggest asset they own – which makes addressing ownership of their home a key aspect of their divorce.
Many spouses and parents, in particular, will have an emotional attachment to the family home as well, and, as a practical matter, staying in the family home is easier than finding a new place to live. So, if you are thinking about your marriage as a homeowner in Illinois, what do you need to know, and what factors should you consider as you evaluate your priorities?
Dealing with the Family Home During a Divorce in Illinois
As with all aspects of the divorce process, there are several considerations to consider when deciding how best to approach ownership of your family home. Some of these considerations include:
1. Is Your Family Home “Marital Property”?
The first and perhaps most important question you need to address is: Does your family home qualify as “marital property”? Under Illinois law, spouses’ marital assets are subject to equitable distribution in their divorce, but the spouses’ respective separate assets are theirs to keep. If you and your spouse purchased your home during your marriage, then it almost certainly qualifies as marital property (unless you have a prenuptial or postnuptial agreement that says otherwise). However, if you or your spouse bought the home before you got married, the home may constitute separate property.
2. Is Part of Your Home “Marital Property”?
If you or your spouse bought the home before you got married, there is a good chance that a portion of the home’s value constitutes a marital asset. If you and your spouse used income earned during your marriage to pay for the home or renovated or updated the home during your marriage, then the portion of the home paid for with marital funds may be deemed marital property for purposes of your divorce.
3. Do You Want to Stay in the Family Home?
When preparing for a divorce, it is important to critically assess whether you truly want to stay in the family home. If you do, then you will need to make this a priority during the divorce process. If you do not, you will have more flexibility for dealing with your home during your divorce; and, if your spouse wants the house, you may be able to use this to your advantage during your property settlement negotiations.
4. Does Your Spouse Want to Stay in the Family Home?
Knowing whether your spouse wants to stay in the family home is important to make your own decisions as you move forward with your divorce preparations. While it may not be possible to know for sure (and depending on your circumstances, it may or may not be in your best interests to have an open discussion about this with your spouse), you can use what you do know to make a reasonable estimation of your spouse’s to own and continue living in the family home.
5. Who Will Have Primary Custody of Your Children?
Custody rights can be a relevant factor in deciding who should retain the family home after a divorce. Generally speaking (though not always), it will make sense for the parent who has primary custody to also remain in the family home. However, there are numerous other financial, practical, and legal issues that need to be considered. Parents ultimately need to make decisions based on a thorough assessment of all pertinent factors.
6. Do You Have Other Assets that Equal (or Exceed) the Value of Your Home?
If your family home constitutes marital property, keeping your house in your divorce may mean giving up your rights to other marital assets of substantially equal value. If your home is your primary asset, this could present certain challenges; however, if you have a mortgage, assuming sole responsibility for the mortgage could balance your overall asset and debt distribution.
7. Do You Have a Mortgage on the Property?
If you have a mortgage on the property, not only will this factor into your overall asset and debt distribution, but it is something you will need to consider in deciding whether to seek ownership of the home as well. Can you afford to pay the mortgage on your own? Will you be able to afford the mortgage if you receive (or have to pay) alimony as part of your divorce?
8. Will You Be Able to Afford Your Other House-Related Expenses?
Of course, owning a house comes with other financial obligations as well. When deciding whether you want to keep the family home after your divorce, it will be important to budget carefully to determine whether you will be able to afford homeownership costs on your own.
9. Are There Other Assets You Want to Prioritize?
Besides your home, are there other assets you want to prioritize in your divorce? While protecting the family home is many people’s first thought when they consider the assets they wish to retain after their marriage ends, upon reflection, many people find there are other assets they want to protect as well.
10. Is There a Possibility You Will Want to Move in the Near Future?
Finally, is it possible that you may want to move in the near future? If so, it may make sense to go ahead and give up the family home now. However, here too, there are countervailing considerations, and you will ultimately want to make your decisions with the advice and guidance of an experienced divorce lawyer.
Discuss Your Options with Gurnee and Lake County, IL Divorce Attorney Deanna J. Bowen
Are you thinking about filing for divorce? Do you have questions about protecting your family’s home (or other assets) during the process? To schedule a free and confidential consultation with a Gurnee and Lake County, IL divorce attorney, Deanna J. Bowen, call us at 847-623-4002 or contact us online today.