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.
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.
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.