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Who gets to keep the house during a divorce?

On Behalf of | Feb 17, 2023 | Divorce |

In many cases, divorcing couples will agree on who continues living in the marital home. But sometimes, when there is no consensus, the court will step in and make the decision. Illinois is an equitable distribution state, which means that a judge will make a decision that is deemed fair and equitable, though not necessarily equal. If minor children are involved, the spouse with the most time with the children will usually remain in the home. But that is only sometimes the case.

A house is often the most expensive asset owned jointly by a couple. Since it cannot be split in half, several factors go into deciding how the property should be divided. It is always beneficial if the divorcing couple can decide upon the division of all the marital assets, so a mediator or judge does not have to decide for them. 

What is considered when deciding who keeps the house?

In some states, community property dictates that marital property is divided 50-50. That is not the case in Illinois, an equitable distribution state. To equitably divide the assets, particularly a house, the judge may consider the following:

  • Were there any prenuptial agreements?
  • Did the couple buy the home together, or was it purchased before the marriage and considered separate property?
  • What age is each spouse? Are they healthy, and can they afford to maintain the house?
  • Was the house acquired through an inheritance or gift?
  • Which spouse spends the majority of the time with dependent children?
  • What are the tax consequences for either spouse?
  • How much equity is in the home? Is there a mortgage?

Options for dividing the marital home

If the house is deemed marital property, meaning both parties jointly own that, there may be several ways to divide the property equitably. 

Selling the house

If neither spouse wants to live in the house, or if neither spouse can afford to live there on their own, they can sell the house and split the proceeds. Both should think about the financial implications of selling the home. Even if neither spouse wants to remain in the home, it can be stressful for their children to move. There are also other financial considerations, such as the money needed for repairs, the real estate market and the other expenses. 

Agree to a buyout

If one spouse wants to keep the house, they can agree to buy out the other spouse either by paying a decided-upon amount, giving up assets to offset the equity, or agreeing to receive payments over time.

Co-own the home

Co-ownership can be a bit more complicated and often happens if the couple agrees to wait to sell the property until the market improves. This would require careful planning and decision-making regarding who lives in the home, who pays for maintenance and so on.