When going through a divorce, couples will have to make decisions on many legal issues, including who will get the marital home. The party that gets to keep the marital home in a divorce, if either at all, largely depends on the facts of the case. Marital homes are generally considered marital property and as such, are subject to division during divorce.
In many cases, the marital home is sold and the couple divides the proceeds fairly. However, when one person wants to keep the home in a divorce, there are certain factors to consider. A divorce attorney in Chicago can advise on the facts of your case, and help ensure you receive a fair share.
Property Division in Illinois
Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101), marital property is subject to division during divorce. Marital property refers to any assets and liabilities acquired by the couple during the marriage.
In many cases the home is considered marital property. This can be true even when the title and mortgage was only in one spouse’s name. If the home is a marital asset it is subject to division. When a judge is making decisions on property division in these scenarios, they will divide the house equitably, although not necessarily equally.
The property laws in Illinois do include certain exceptions as to what is deemed marital property. For one example, 750 ILCS 5/503 excludes property acquired by gift, legacy, or descent. As such, if one spouse received the home as part of their inheritance, it is possible that it is not marital property and therefore, it is exempt from property division.
Agreeing on the Division
Like any issue associated with divorce, it is possible for the couple to come to an agreement on their own about the marital home. In these instances, the spouse that wants to keep the home typically agrees to allow their spouse to retain other property. For example, if a married couple owned both a family home and a cottage, one may agree to keep the house with the other keeping the cottage; or the person giving up their interest in the home may receive a larger share of retirement money.
Factors to Consider
The marital home is one of the most meaningful assets in any divorce. It is often where a couple raised their children and holds many memories. In addition, the marital home may be the couple’s biggest asset, as well as their biggest liability. Anyone that wants to keep the family home after divorce should consider the fact that they will have to refinance the mortgage in their name only and pay for the upkeep, insurance, and property taxes.
Call Our Chicago Divorce Attorney Today
If you are getting a divorce and have questions about the family home, I am Michael C. Craven, a divorce attorney in Chicago that can provide the answers you need. Call me today at (312) 621-5234 or contact me online to schedule a consultation so I can review your case.
