Home Ownership & Divorce in Illinois

By Heather Frances J.D.

Owning your own home is still the American dream, but a home can be tough to split between divorcing spouses. For most couples, the home is more valuable than the bank accounts. In Illinois, marital property -- often including the family home -- is split equitably between spouses, though not necessarily equally. This often means the house must be sold to split its value between the spouses.

Owning your own home is still the American dream, but a home can be tough to split between divorcing spouses. For most couples, the home is more valuable than the bank accounts. In Illinois, marital property -- often including the family home -- is split equitably between spouses, though not necessarily equally. This often means the house must be sold to split its value between the spouses.

Equitable Distribution

Illinois is an “equitable distribution” state. In equitable distribution states, marital property, which is most of the property acquired during the marriage, is split fairly and equitably between the spouses. However, the split is not always equal -- unless the circumstances support an even split. Illinois courts consider various factors to reach a decision on property division, including the length of the marriage and the contributions each spouse made to the marriage.

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Selling the Home

You and your spouse can agree that one of you will keep the house while the other receives a larger share of other assets, or you can agree to sell the house and split the proceeds. If you and your spouse cannot reach an agreement about which of you will keep the home, the judge is unlikely to order that one of you gets to stay in the home. The judge is more likely to order the house to be sold and the proceeds from the sale divided between the spouses.

Keeping the Home

If your spouse keeps the home, you may need to remove your name from the deed and mortgage. Typically, you can remove your name from the deed -- thereby releasing your ownership rights -- by signing a quitclaim deed giving your share to your spouse. A quitclaim deed is different from the warranty deed you probably received when you bought the house. In a quitclaim deed, you are not making any guarantees that you have proper title to the house. You’re simply giving any portion of the property you might own to your spouse. To release you from the mortgage, you and your spouse may need to obtain a cash-out refinance in which the property is refinanced but the original mortgage lien is not repaid. Instead, your name is removed from the mortgage and your spouse remains liable for future mortgage payments.

Separate Property

Your home is not always considered a marital asset. For example, if you acquired your home prior to your marriage, the home may be considered separate property, which is not divisible by the Illinois court during your divorce. However, if you used marital assets -- other property you acquired during the marriage -- to pay the mortgage payments or make improvements to the house, the court could decide that the character of the house has changed from separate property to marital property or that the house’s increase in value is marital property. Alternatively, it could decide that the martial estate is entitled to reimbursement from you for mortgage payments or improvements.

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Can a Spouse Get Half of the House in a Divorce in Connecticut?

References

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Divorce Laws on Mortgage Loans in Ohio

When you end your marriage in Ohio, you and your spouse have the option of reaching your own agreement about how to divide your marital property or you can have the court decide these issues for you. Either way, your divorce should decide which of you will keep the house -- but the court cannot order your lender to take your name off the loan.

Equal Property in Illinois Divorce Law

When spouses divorce in Illinois, they can agree about how they want their property divided or they can have the court divide their property according to Illinois statutes. An Illinois court can accept the property division you propose and adopt it as part of your divorce decree, but the court will make its own determinations if you cannot reach agreement.

How to Keep Your Home After a Divorce

Divorce invites the court into the most personal areas of your life, including what's going to happen to your home. If you and your spouse can't reach an agreement regarding what to do with the marital residence, a judge will rule on the issue at trial. If you both want the house, the judge might order it sold rather than decide between you, unless he has a compelling reason not to. If you and your spouse negotiate a marital settlement agreement, however, there are some ways one of you can keep it.

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