Who Retains Possession of the Marital Home During and After Divorce?

Who Retains Possession of the Marital Home During and After Divorce?

For many couples, one of the most difficult aspects of divorce is property division, especially when it comes to the family home. Fortunately, in many cases, divorcing couples are able to come to an agreement about the fate of their residence, with one or neither spouse retaining possession. However, couples who cannot decide who will keep the home will need to leave the decision in the hands of a family court, who will make a determination based on what represents a fair and equitable distribution of marital assets. If you are going through a divorce and believe that you should retain access to a home, you need the advice of an experienced Schaumburg divorce attorney who can ensure that your interests are protected.

Fairly and Equitably Dividing Marital Assets

In Illinois, a couple’s marital property is divided fairly and equitably upon divorce. While many people think this means that all assets are divided down the middle, the reality is that 50/50 splits are relatively rare, as courts take a number of factors into account before making a division, including the length of the marriage, each couple’s financial circumstances, and custody arrangements.

Another important part of the division process is determining which property qualifies as marital and which counts as separate property. This is a critical distinction because separate property is not divisible, but will remain in the sole possession of the original owner. Aside from assets owned prior to the marriage, any personal injury awards, inheritances, and gifts received during the course of a marriage are also generally considered to be separate property. The remainder of a couple’s property obtained during the marriage, on the other hand, will be categorized as marital property, and so will be subject to division. In most cases, family homes are considered marital property, unless one party owned the residence prior to the marriage. In fact, even if one spouse owned the home prior to marriage, the property could still qualify as a marital asset, if the other spouse contributed to its development during the marriage by making improvements or by making mortgage payments.

Approaches to Dividing a Marital Home

Unlike other assets, such as bank account funds or retirement accounts, it can be difficult to divide real property, such as a home, especially when both parties want to retain possession. Illinois courts have a number of approaches when making these types of determinations. For instance, a court may decide to award possession of the home to one party, perhaps the primary caregiver of the couple’s children, while allocating a larger portion, in an amount equaling their share in the equity of the home, of the remaining assets to the other spouse. Examples of assets that could offset the value of half of a home’s equity include retirement accounts, vehicles, and investment properties. In these cases, the spouse giving up possession of the home will need to have his or her ex-partner’s name removed from the deed and mortgage documents.

Alternatively, the court could require the parties to obtain a valuation of the property, sell it, and then divide the proceeds equitably. This option is especially common in cases where neither spouse qualifies for a mortgage on their own, or where the property has minimal equity.

Call Today for Help with Your Divorce-Related Concerns

If you have filed for divorce and are concerned about the fate of your family home, please call the SAM LAW OFFICE LLC at 847-255-9925 to speak with an experienced Schaumburg divorce attorney about your options.