Who Gets the Marital Home in Divorce?
A home can be the most valuable asset a couple owns. Moreover, spouses may also have emotional ties to the marital home. In a divorce, determining who gets the couple’s home, or whether to sell it, is one of the most important considerations.
In an Illinois divorce, a couple’s marital property is divided under the principles of equitable distribution. This means that the division will be fair, although not necessarily equal. Since only marital property is divided, a house is often subject to division, but not always.
If the home was purchased before the marriage, the property will generally be separate property and will not be divided in a divorce. However, if a home is titled in both spouses’ names, or was purchased during the marriage, then the home is considered marital property and is subject to division. If a house was purchased with both marital and separate property, then the spouse contributing the separate property may have a right to reimbursement for that amount.
To determine how to divide the house, the value must first be determined. If the couple cannot agree on the home’s value, an appraiser or another third party will estimate the property for fair market value. Next, the value of any liens, including mortgages, must be deducted to reach the value to be divided in the property settlement.
Dividing the House
A couple may be able to divide the house with their other assets. They may own other properties, a family business or retirement accounts that can be used to offset the value of the home in the property settlement. One spouse may also be able to buy the other spouse out, perhaps by taking out a mortgage.
There is a possibility, however, that neither spouse may be able to keep the house after the divorce. Each spouse may not have sufficient assets to offset the home under equitable distribution. Or, sometimes neither spouse can afford to keep the property alone — mortgage payments, taxes, utilities, upkeep and insurance may be too costly for a single income. In that event, the house can be sold and the profits divided between the spouses.
If the spouses can reach an agreement as to how to divide the marital home, they can then sign a settlement agreement to that effect. Otherwise, the Court will determine what to do. The Court may take into consideration the preservation of continuity for minor children living in the marital home.
Retitling and Refinancing
If one spouse keeps the home after the divorce, then the house must be retitled in his or her name in order for ownership to officially transfer. Simply retitling, however, does not affect the mortgage. Mortgages are often in both spouses’ names, and a couple’s divorce does not affect the loan. If the spouse who keeps the house stops paying the mortgage, then the bank can go after the other spouse for payments. Thus, if one spouse keeps the home in a divorce, the couple should then refinance the mortgage in one spouse’s name only.
The division of property is one of the most important and sensitive issues in a divorce. If you are considering divorce, please contact skilled Palatine family law attorney Nicholas W. Richardson for a free consultation.