If We Get Divorced, Who Gets the House?

 Posted on May 23, 2016 in Property Division

Couples planning to divorce have several factors to consider. For example, couples often worry about how property will be divided during a divorce. Specifically, who will get the house? It is important to understand specific elements of Illinois divorce law that commonly arise when determining who will get the marital home if you are planning to separate from your spouse.

Fault Does Not Matter

In a divorce in Illinois, fault is not taken into account. When dividing assets, a court will not consider the events that went on in the marriage or reason for divorce, unless resources were wasted or misspent.

What Can be Done With a House

There are a few situations that can occur with a marital home during a divorce. One party may get the house and the other party may get other property of approximately the same value. Another option is for the court to order that the house be sold and the profits be divided between the parties. The house may also be in foreclosure. Additionally, one spouse may get the house and “buy out” the other spouse’s share. Finally, property can be divided in such a way that one party may get the house without the other party being fully bought out or receiving an equivalent share of property. This is most likely to happen when kids are involved.

Property Division

While a few states use a “community property” model, Illinois, and the majority of states, uses “equitable distribution” to divide assets after a marriage. Equitable distribution means that in the case of a divorce, marital property should be split equitably between the parties. Marital property typically refers to property brought into the marriage by either party during the course of the marriage. Indeed, even if only one spouse works, the income is still considered marital property and the property of both spouses.

Notice the word is “equitable” and not “equal”. Equitable may not always be the same as equal. There are various factors the court may take into account that will end up with one person getting more property than the other, or in this case may make him or her more likely to get the house:

• Child Custody – One of the biggest reasons that the court may award the house to one spouse without giving the other spouse money or other marital assets of the same value is because the person who is getting house is also having the children live with him or her. A divorce is turbulent enough and courts want kids to have as stable a life as possible.

• Affordability – If one party will have the income to maintain the house after the divorce, then he or she may be more likely to be awarded the house; however, he or she may also have to buy the other spouse out.

DuPage County Divorce Lawyers

If you are thinking about a divorce and are concerned about what your rights are to the marital home or other marital property, you should contact a skilled divorce attorney. Our dedicated DuPage County divorce lawyers at Davi Law Group, LLC can help talk to you about your rights and obligations as they relate to your specific situation.

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

https://www.law.cornell.edu/wex/equitable_distribution