As a divorce lawyer in Chicago Skokie and Evanston, people often ask me if they can keep their house after a divorce. The answer? It depends. If you want an answer to the question what happens to the house after divorce, read this article about dividing this important piece of property. It is often one of the most critical areas of a settlement or trial of a divorce in Illinois.
The biggest question in deciding who gets the house after a divorce is whether or not the divorce is an uncontested divorce in Illinois, or not. If a divorce is uncontested, it is by agreement. If it is not uncontested, then it will involve litigation.
First I will addressed what happens in a contested divorce. This is a primarily a discussion of the law.
According to the Illinois marriage and dissolution of marriage act, marital property is divided up on divorce, but non marital property is not. Non marital property is awarded to the person who acquired it or who owns it.
So in a contested divorce, the primary question regarding division of property is whether or not it is marital property, and divided, or whether it is non marital and simply belongs to one of the parties but not at the other.
Marital property is property which was acquired during the marriage, with a few exceptions. The primary exception is property acquired by gift. For example, if a couple is married and buys a house using the marital assets, such as funds from a joint bank account, B House is marital property and will have to be divided up on the divorce.
However, if the house was required because three husbands uncle gave it to him as a gift or through inheritance, then the house is generally the husband’s non-marital estate, and therefore would not be part o the marital property divided upon divorce.
Uncontested divorce in Illinois
In an uncontested divorce in Illinois, the spouses can come to an agreement.
Many times when people contact me about a fast and affordable flat fee uncontested divorce, they describe some scenario, and ask me “can we agree to that?” The answer is almost always, “yes”.
For example, in an uncontested divorce the non-marital property o the husband could be awarded to the wife. It all depends on what deal they make. For example, maybe the husband doesn’t want certain non-marital property, and the wife does. The husband could agree that the wife will get the house the was his non-marital property in exchange for some portion of the wife’s normal/expected share of the marital property.
I address what to do with homes in an uncontested divorce in my article, “FAQ: Fast and Affordable Uncontested Divorce in Illinois.”
Beware! Problems with the home in divorce
Handling a home in divorce can be complicated. There are many rights and responsibilities that come with the home, such as the right to live in in, and the responsibilities to pay all the bills. And if both spouses are on the deed or mortgage or the house, often a “quit claim deed” is needed to make it clear in the chain of title that one spouse has no interest in the property – that can be important when the house is sold or it’s mortgage is refinanced.
When you are dealing with a home in an Illinois divorce, your Illinois divorce lawyer can have a major impact on your case.
You might want to check out my other articles, “Dividing property in divorce: Overview” and “Is property split 50-50 in Illinois Divorce?” – those articles will give you a more general an perhaps nuanced understanding of the law of dividing property in an Illinois divorce.