Who Gets the House in a Divorce?
Dividing assets during a divorce is always complicated, especially when property is involved. Who gets the house in a divorce? While Illinois law states that marital assets should be divided equitably, there are several factors to consider, particularly regarding who legally owns the house and whether or not one party wants to remain in the home.
How are Marital Assets Divided?
Marital assets are anything of value that was acquired during the course of a marriage. Examples of marital assets include:
- Real Property (real estate)
- Cars
- Jewelry
- Large furniture
- Financial assets and accounts
- Small businesses
Divorce laws in Illinois indicate that assets obtained during a marriage should be divided equitably, though in many cases, this is easier said than done. Most importantly, equitably does not always mean equally. In order to divide assets, they would need to be sold first, with the profit divided “equitably” between the former spouses. This can be complicated for items of significant emotional attachment. When it comes to who gets the house in a divorce as part of the distribution of marital property, your house is likely the largest asset shared by you and your former spouse.
If assets were obtained before the start of the marriage, the original owner will have the legal right to keep them. For example, if a woman bought a house before getting married, and then her husband moved in with her later, she as the owner would have more legal right to keep the home in her name alone. However, depending on the specific facts and circumstances of the case, her husband might have a right to some of the equity in the home.
Who Gets to Stay in the House During the Divorce?
When trying to determine who gets the house in a divorce, several factors must be considered:
- Can the party who wishes to keep the home afford the mortgage payments, as well as all the other home-related expenses?
- Is the intent to keep raising the children in the family home?
- Are there other marital assets that can offset the loss of only one party keeping the home (e.g. one party gets the house while the other gets the cars)?
- Is either party planning to move in the near future?
The answers to these questions will help clarify a rightful plan of action for the home. As far as who gets to stay in the house during the divorce proceedings, this will again tie back to the owner of the home. If one party acquired the home before marriage, they are the rightful owner and get to remain in the house. If the home was bought during the marriage with marital funds, it is considered marital property with neither party having sole ownership rights. If there is an issue regarding physical or mental health abuse, a party can move to have the other party evicted, though that will require proof of imminent danger to the courts.
Get Help with Determining Who Gets the House in Your Divorce
Separating assets can be a complicated, painful experience, but the compassionate team at Conniff & Keleher can help. We can answer your questions and guide you towards a positive resolution. Contact Conniff & Keleher to learn more about our divorce services.
