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What happens to your marital home in an Illinois divorce?

Posted on in Property Division

For many couples heading into a divorce, there are two major points of contention. The first and often most emotional issue will be custody and support of any minor children from the marriage. The second issue, which can also become quite contentious, is how to fairly divide assets between spouses. In cases with a prenuptial agreement, asset division can prove easier. Barring that or an uncontested agreement about how to divide your assets, the courts will make these decisions on your behalf.

One of the most pressing questions for those seeking an Illinois divorce is often what will happen to their marital home. After all, a house is typically the biggest investment people make in the course of their lives. You may have spent years paying a mortgage, and you also likely have many years of happy memories in your home. It's only natural to want to know your chances of keeping the house.

Homes are typically marital property, but not always

When you get ready for a court-based divorce, you need to provide the courts with an inventory of all your assets. That will include any equity you've built up in your home. Illinois courts work toward a fair and equitable distribution of marital assets. While that doesn't always mean a 50/50 split, it does typically result in dividing up the biggest assets from marriage, including the home.

Sometimes, however, the home where you lived was actually separate property of one spouse. If you or your spouse owned the home outright prior to marriage, for example, it would remain separate property in most situations. If the home was part of an inheritance left to either spouse or a gift from family, that could also result in the courts considering it separate property. Otherwise, if purchased during marriage, your home is very likely marital property, subject to division.

The courts can approach dividing your home several ways

The courts consider many factors when dividing assets, including income, economic circumstances and child custody arrangements. In some situations, they may decide that allocating the home to one spouse is the best course of action. This generally involves that spouse refinancing the home to remove the other spouse from both the mortgage note and the deed for the property.

The spouse not receiving the home will likely receive a portion of the equity or assets that are equivalent to his or her share of the equity in the home. Retirement accounts, investment properties and vehicles are examples of valuable assets that could offset the value of half of the home's equity.

In cases where neither spouse can obtain a mortgage alone or where the home has minimal equity, selling the home and splitting the proceeds will likely make the most sense.

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