During a divorce, there are many questions that need answering. One of the most pressing frequently regards the family home. Not only is the home an important financial asset, but it also taps into deep emotions.
Disagreement over who is allowed to stay in the house and who moves out can be a major point of contention in many cases.
The first question that needs to be considered is what constitutes “marital property”? For the purposes of the court, all property that was acquired during the time the couple was married is presumed part of the marital property. Marital property may also include any property that was bought before the marriage but was transferred into a co-ownership.
A home that is titled in one spouse’s name at the time of divorce that was acquired before the marriage or during the marriage by gift or inheritance is separate non-marital property and will not be divided by the courts. This non-marital property will be awarded to the owner.
However, if the home is non-marital property and the non-purchasing spouse has been contributing to the mortgage or contributed to its improvements, the judge may take that information into account and order some or all of those contributions to be reimbursed to the marital property.
While the courts are deciding who owns what property and how it will be divided, divorcing couples want to know who gets to stay in the home during this time.
Unless the court orders one spouse to leave, both have equal right to occupy and use their home, which means the couple themselves makes the decision as to who will stay and who will go. In some cases, the parties continue to live together in the home throughout the case and possibly for a period of time thereafter. However, if there is physical, emotional or mental abuse, the courts may become involved and order that one party must vacate the home while the case is pending.
There are many factors a judge will consider when deciding how to divide the marital home, and each case is different. Because Illinois is a state where the courts work to provide a fair and equitable distribution of wealth, in cases where the home is marital property the spouse who does not receive the home will be awarded an equitable portion of other assets that are divided by the parties.
As with any aspect of a divorce agreement, you should work with your attorney to ensure you are getting the best legal advice on handling who will stay in the house after a divorce and how the property’s value will be divided.
