Dividing Assets: Who Gets the Marital Home?

 Posted on June 14, 2018 in Division of Property

When it comes to dividing up property during divorce proceedings, Illinois is an equitable distribution state, meaning that marital assets are split as equitably (fairly) as possible. Thus, when large or expensive assets need to be divided, it can require a bit of maneuvering to ensure that both spouses receive the most equitable share of the estate. The marital home is one of the assets most commonly debated and argued about during proceedings, but it is possible to work out who should be awarded the home without leaving them otherwise penniless.

Is the House Marital Property?

The first question that must be asked is whether the home is even considered marital property or not. In most situations, the answer will be yes, but it cannot simply be assumed. Under Illinois law, any asset acquired by either spouse after the marriage is considered marital property, which usually includes the marital home - most couples will make that purchase together after they are married, sharing the title between them as joint tenants or tenants in common. (A joint tenancy occurs when two people own property together as a unit, meaning that if one person dies or wishes to give up their interest, it will be taken up by the other owner; on the other hand, tenants in common are free to sell or transfer their interest.)

However, even if a married couple does not purchase a marital home - for example, if they move into a home owned by one spouse or that person’s family - it still may wind up that the home is classed as marital property. Non-marital property may become marital under certain circumstances, and the law specifically makes this point with regard to property that is held “individually or by the spouses in some form of co-ownership,” such as joint tenancy or tenancy in common. Thus, a marital home may become marital property even if it does not start out that way.

Deciding Who Gets the Home

Once it has been established that the house is marital property, the court will need to decide who should retain title to it. While some couples simply agree to sell the marital home and divide the proceeds equitably, most of the time a determination will have to be made. In most situations where children are involved, the custodial parent will remain in the marital home, but this is not always the case, and if a couple has no children, there is no presumption in favor of either spouse’s retention.

There are multiple factors besides custody that a court will weigh in order to determine which spouse should retain the marital home (if either one), including the relative income of both parties, commute distance, and the ability to meet the tax burden on the property. Some argue that it is smart to attempt to transfer the property during the proceedings, rather than after - doing so can save both spouses later financial trouble - but whether during or after, it will likely be necessary to refinance the home to ensure that title rests in the name of only the spouse awarded the home by the court.

Contact a Knowledgeable Attorney

Even if you receive the marital home in your divorce, you may be faced with buying out your spouse’s interest or other financial transactions to perform, or you may simply have questions. If you do, contacting an experienced attorney is a good idea, to ensure no missteps occur. The dedicated DuPage County divorce attorneys at Kathryn L. Harry & Associates, P.C. have experience in these cases and are happy to try and help you with yours. Call our office today to set up an appointment.

Sources:

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

https://www.isba.org/iln/2018/02/transferthemaritalhomeduringnotafte