Who Gets the Marital Residence in a Divorce?

Dividing assets during a divorce is often one of the most contentious and emotionally charged parts of the process. Among these assets, the marital residence, the home shared by the couple, holds significant financial and emotional value. For many couples, determining who keeps the home, or what happens to it, is a central concern.

Factors Courts Consider in Awarding the Marital Residence

In Illinois, the marital residence is typically considered marital property if it was purchased during the marriage. This means that its division is subject to equitable distribution, where the court divides property based on fairness, not necessarily equality.

Financial Circumstances of Each Spouse: The court will assess each spouse's income, earning capacity, and ability to afford the home's mortgage, taxes, and maintenance. With rising interest rates and inflation in Illinois, these factors have become more pressing.

Custodial Arrangements for Children: Stability for children is a priority in family law cases. If one spouse has primary custody of the children, the court often aims to keep the children in the marital home to minimize disruption.

Emotional Attachments and Practicality: Courts prioritize practicality. If both spouses express a desire to keep the home but neither can afford the mortgage on their own, the court may decide that selling the property is the best course of action.

Other Assets: The marital home's value is considered alongside other assets, such as retirement accounts, vehicles, and savings.

What If the Home Was Purchased Before the Marriage?

Generally, a home purchased before the marriage is considered non-marital property. However, several factors could convert it into a marital asset:

Commingling of Funds: If marital funds were used to pay the mortgage, property taxes, or significant renovations, the home may be deemed partially marital property.

Title Changes: If the title of the home was changed to include both spouses' names, this can transform the property into a marital asset.

Contributions to the Home: Non-financial contributions, such as one spouse's labor or time spent improving the property, may also factor into the court's decision.

Appreciation in Value: If the home's value increased during the marriage due to the efforts of both spouses, that appreciation may be subject to division.

Options for Handling the Marital Residence

One Spouse Keeps the Home: Buying out the other's equity. This process can be financially complex in today's economy. Refinancing is often required, and with current high interest rates, this can result in significantly increased monthly payments.

Sell the Home and Split the Proceeds: Often the most practical solution, particularly if neither spouse can afford the property independently.

Delayed Sale: Courts sometimes allow a delayed sale where one spouse (usually the custodial parent) remains in the home temporarily.

Consulting with Professionals

Dividing the marital residence requires careful evaluation of legal, financial, and emotional factors. Consulting with a family law attorney is crucial to understanding your rights and options.