Who gets the house in a divorce depends on factors such as who wants it, the spouse’s capacity to pay the mortgage, the terms of the divorce, and each spouse’s investment in the house. The spouses can agree on the house issue between themselves, or a judge can make a ruling. Since Illinois is an equitable distribution state, the court’s goal is to divide property fairly, but not necessarily equally. For example, a judge in Arlington Heights, IL, may give one spouse the house but a lesser share of the savings accounts.
Who Has Rights to the House in a Divorce?
Before a divorce, individuals should know the person or people whose names are on the deed, title, and mortgage of the shared home. They usually have rights to the house in a divorce.
If only one spouse’s name is on all three, that person typically has rights to the house. The other spouse may have an uphill battle trying to prove a claim, but could have some rights to the house in the form of sweat equity and money paid for repairs and upgrades.
If you owned the house before the marriage and your spouse never got his or her name on the title, deed, or mortgage, that person might have little or no claim to the house. This is especially true if he or she did not pay anything toward the mortgage and did not help modernize the house or contribute sweat equity to it.
In many cases, both spouses’ names are on the deed, title, and mortgage. They typically buy a house together during engagement or after marriage.
How Is Ownership of the House Determined in a Divorce?
After verifying whose names are on titles, deeds, and mortgages, investment amounts come into play. The spouses or judges typically look at how much each spouse invested to see what percentage of the house each might own. Factors considered include:
- How much money each spouse contributed to the down payment
- How much money each spouse has contributed to mortgage payments
- How much each spouse has spent on repairs and home improvements
One spouse may have paid for 60% of these expenses, while the other paid 40%, or it could be 50/50, 80/20, 70/30, or any ratio depending on the unique case. Your divorce lawyer will track these various investments and make calculations.
If you moved out of the house during a divorce, you can still get it after the divorce is final, depending on the reasons behind the move and other factors such as who owns it on paper. However, it is wise to consult with an attorney before moving out, in case it would hurt your claim.
Who Decides Who Gets to Keep the House?
The spouses can decide between themselves who gets to keep the marital home in Arlington Heights, IL. They may decide based on child issues, sentimental or emotional reasons, financial reasons, or other grounds.
The spouse who gets the house may receive a lesser share in other asset division. For example, if both parties’ lawyers determine that Spouse A contributed 45% toward the house but is keeping it, then Spouse A might get less of a share of other assets. In these cases, it can be fairly straightforward to decide who keeps the house, as long as the math checks out.
However, if you want to keep the house, it is important that you’re able to pay the associated bills after the Illinois divorce. Some spouses do this partially or fully through spousal maintenance or child support. Not all lenders will approve refinancing exclusively in one spouse’s name, though, and expenses to consider go beyond mortgage payments to include taxes, utilities, insurance, and repairs.
When your ex wants it all, you may need a contested divorce. In these cases, the court may rule on who keeps the house. Judges can give the house to one person or allocate distributive shares based on each person’s investment percentage.
Given this, one spouse could pay the other for his or her share of the house in a buyout. Alternatively, the spouses could sell the house and divide the proceedings based on the percentage each owns (60/40, for example). In another scenario, the judge could use other assets to make up for the value of the house. A judge might not give you the house if it would leave you unable to pay unexpected/emergency bills or other expenses that are not house-related.
Deferred distributions are possible, too. A judge might rule that a spouse can stay in the house until the children graduate from high school. At that time, the spouse would need to pay assets owed to the ex-spouse or sell the house.
What Happens if Neither Spouse Wants to Keep the House?
It’s possible that both you and your spouse do not want to keep the house. In these situations, selling the house is usually what happens. You might then divide the proceedings according to the percentage each invested in the house, although this could change depending on other assets, debts, and liabilities.
- You and your spouse can probably pick a real estate agent yourselves if you are able to agree on one.
- If not, the judge may assign an agent.
- A judge-assigned agent might review the house for needed repairs or upgrades before it is listed.
Can the House Be Sold Before the Divorce Is Final in Arlington Heights, IL?
Spouses are typically not allowed to sell a home before a divorce is final without the other spouse’s knowledge or permission. This is the case in many states even if the house is solely in the other spouse’s name. A spouse would need to get the other spouse’s consent or approval from a judge to sell the property.
