Key Takeaways
- Neither spouse automatically gets the marital home simply because they want it more.
- Illinois courts divide marital property in just proportions after considering statutory factors.
- Whether the house is marital or non-marital property can significantly affect how it is treated.
- One spouse may keep the home while the other receives other property or compensation for their share of the equity.
- Refinancing may be necessary when both spouses are liable for the mortgage.
- Selling the home may become an option when neither spouse can afford a buyout or the parties cannot reach a workable agreement.
Who Gets the House in an Illinois Divorce?
There is no single rule that gives the house to the husband, wife, higher earner, spouse whose name appears on the deed, or parent who spends more time with the children.
Instead, the outcome depends on the property’s classification and the overall division of the marital estate.
Illinois law requires courts to divide marital property in just proportions after considering relevant statutory factors. Those include each spouse’s contribution to acquiring and preserving marital and non-marital property, the value of property assigned to each spouse, the duration of the marriage, each person’s economic circumstances, obligations from prior marriages, and other considerations specified by law.
This means the marital home generally cannot be evaluated in isolation. When spouses disagree about who gets the house, the court may need to consider how awarding it to one person affects the rest of the property division.
Is the House Marital Property?
Before deciding who should receive the home, you generally need to determine whether it is marital property.
A house acquired during the marriage is generally presumed to be marital property, subject to statutory exceptions. The analysis can become more complicated when one spouse owned the house before the marriage, received it through an inheritance, or used separate funds toward its purchase.
The way the property is titled does not necessarily resolve the issue by itself. Determining the home’s classification is therefore an important first step before arguing about which spouse should keep it.
What Factors Matter When Both Spouses Want the House?
When spouses cannot agree, the court considers the home as part of the larger marital estate. Several practical and financial considerations may influence how the property is ultimately handled.
Each Spouse’s Financial Circumstances
A spouse who wants the house needs to consider whether keeping it is financially realistic. Mortgage payments are only part of homeownership. Property taxes, insurance, utilities, maintenance, association fees, and repairs can make a previously affordable house difficult to maintain on one income.
The court can also consider each spouse’s economic circumstances when property is divided.
Other Property Available for Division
Keeping the house may require tradeoffs.
If substantial investments, retirement accounts, cash, business interests, or other real estate properties are part of the marital estate, there may be enough assets to offset the equity awarded to the spouse who keeps the marital residence.
When the house represents most of the couple’s wealth, finding a workable division can be more difficult.
Parenting Arrangements
When spouses have children, remaining in the marital home may offer practical benefits such as continuity in schooling, neighborhood relationships, and daily routines. However, parenting responsibilities do not necessarily guarantee that one parent receives the house.
The financial feasibility of keeping the property remains important.
Can One Spouse Buy Out the Other Spouse’s Share?
A buyout is one common solution when both spouses initially want the home but ultimately agree that one person will keep it. If the spouses have equal interests in that equity for purposes of their negotiated settlement, the spouse keeping the property may need to compensate the other for an agreed share.
A buyout does not always require a cash payment for the entire amount. The spouses might account for the home’s equity when dividing property by allocating other marital assets differently.
For instance, one spouse could keep more home equity while the other receives a larger portion of investment or retirement assets. The appropriate arrangement depends on the value and nature of the entire marital estate.
What Happens to the Mortgage If One Spouse Keeps the House?
Receiving the house in a divorce judgment does not automatically remove the other spouse from the mortgage.
This distinction is important. A divorce agreement determines rights and responsibilities between spouses, but the mortgage lender is not ordinarily bound by an agreement between the divorcing parties that changes who is responsible for the loan.
If both spouses signed the mortgage, both may remain contractually responsible unless the loan is refinanced, paid off, or the lender agrees to another arrangement.
That creates risk for the spouse who moves out. If their name remains on the mortgage and the spouse keeping the house misses payments, the missed payments could affect both borrowers.
For that reason, divorce agreements involving the home may establish requirements and deadlines concerning refinancing or sale.
Can a Court Order the House Sold?
Sale can become an option when neither spouse can afford to buy out the other, refinancing is not feasible, or keeping the property would make an equitable division difficult.
A sale converts an illiquid asset into funds that can be allocated as part of the divorce. Depending on the circumstances, sale proceeds may first be used to satisfy the mortgage and qualifying transaction costs, with the remaining amount addressed through the property division.
Selling may also resolve the conflict when both spouses insist on keeping the house but neither presents a workable financial plan for doing so.
A sale is not necessarily the preferred outcome for either spouse. However, the desire to remain in the home does not eliminate the financial realities surrounding the property.
Finding a Workable Solution When You Both Want the Home
When both spouses want the house in an Illinois divorce, the dispute often comes down to classification, value, equity, affordability, and how the home fits within the broader marital estate.
Several outcomes may be possible. One spouse may keep the property and buy out the other’s interest. Other assets may be used to balance the division. The spouses may agree to sell. If they cannot resolve the issue themselves, the court can determine how the home should be handled as part of the divorce.
Before deciding that keeping the house is your highest priority, consider what doing so will require financially after the marriage ends. A favorable property arrangement should be workable not only on the day the divorce becomes final but also in the years that follow.
If you and your spouse both want the house in an Illinois divorce, contact a Northbrook divorce lawyer at Silberman Law Group at (312) 593-0075 to discuss your options.
