Determining what happens to the family home is often one of the most emotional and crucial issues in a divorce. The home represents not just a significant financial asset but also a place filled with memories.
In Illinois, the principle of “equitable distribution” guides property division. This means that judges divide property and allocate debts based on what is fair under your particular circumstances. That means distribution could be 50-50, 60-40, 70-30 or some other ratio.
Understanding how these rules work and the options available for spouses can help you through the complexities of property division in Illinois.
Typical options for spouses
When it comes to distributing your and your spouse’s financial interests in the family home, the three primary options are:
Selling the house
You can sell the house and divide the proceeds. This is often the simplest solution, especially if neither spouse can afford to keep the home on their own.
You or your spouse buying out the other’s interests
One spouse can buy out the other’s share of the home. This allows one person to keep the house while compensating the other for their share.
Continuing to co-own the house
You can agree to co-own the home for a period. This is often done to allow young children to remain at home while adjusting to this major change in their lives. This arrangement can be complicated but might be necessary in certain situations.
If you and your spouse cannot agree on any of these options, the court will decide for you.
Primary factors that can determine who gets the house
In Illinois, who gets the family home in a divorce depends on several factors, including:
- Child custody: If there are children, the parent with primary custody is often given the house.
- Property division: The court will consider what each party deserves based on their contributions to the marital estate.
- Property value: A professional appraisal will be needed to determine the house’s current market value.
- Other assets: To balance out the property division, the other spouse will typically receive a larger share of other assets, such as retirement accounts.
- Agreement: The spouses may agree on who gets the house between themselves.
Lawyers can help navigate these factors, ensuring a fair division of all marital assets, including the family home.
Other factors judges consider when dividing property?
Illinois courts consider multiple factors to ensure a fair distribution. In addition to the primary reasons given above, these include:
- How long the marriage lasted
- Each spouse’s economic circumstances after the divorce
- Each spouse’s contribution to the acquisition, preservation or change in value of the property
- Each spouse’s potential to earn income and acquire assets in the future
- Each spouse’s needs
- Whether the property division is in addition to or instead of a spousal maintenance (alimony) award
- Whether either spouse has wasted (“dissipated”) marital property
- The value of separate property that each spouse is keeping, as well as their liabilities
- Any previous agreements the couple had about their property
Judges use these factors to create an equitable distribution that reflects the unique circumstances of your marriage and divorce. This approach aims to ensure fairness rather than strict equality.
Determining whether keeping the house is in your best interests
Deciding whether to fight to keep the family home in a divorce is not easy. While emotional attachment can be strong, weighing practical and financial reasons before making up your mind is crucial. Here are some questions to ask yourself:
- Can I afford the mortgage and upkeep on my own? Consider whether your income will be sufficient to cover the mortgage, property taxes, insurance and maintenance costs.
- What is the current market value of the house? Getting a professional appraisal will help you understand the financial implications of keeping the home.
- Are there any hidden costs? Think about potential future expenses, such as repairs or renovations, which could add to your financial burden.
- Will keeping the house impact my ability to move forward financially? Consider how holding onto the house might affect your ability to save for retirement or other financial goals.
- Do I need the space? Evaluate whether the size of the house is appropriate for your new living situation. A smaller, more manageable home might be more practical if your children are grown or you live alone.
- Is the location still convenient for me? Consider whether the home’s location suits your job, social life or children’s schools.
- How will keeping the house affect my emotional well-being? While the house may hold sentimental value, think about whether staying there might hinder your ability to move on emotionally.
- What are the tax implications? Consult a financial advisor to understand the tax consequences of keeping the home.
- Can I buy out my spouse’s share? Determine if you can compensate your spouse for their share of the home’s equity.
- Is co-owning the house a feasible option? Consider whether continuing to own the house with your ex-spouse is a practical arrangement, especially if it’s for the sake of your children.
By carefully considering these questions, you can make a more informed decision about whether keeping the family home is truly in your best interests.
Experienced legal guidance can help protect you and your financial well-being, so you receive a fair share of marital property, including the family home.