Who Gets the House in a Divorce?

Dividing assets during a divorce is always complicated, especially when property is involved. Who gets the house in a divorce? While Illinois law stipulates that marital assets should be divided equally, there are several factors to consider, particularly regarding who legally owns the house and whether or not one party wants to remain in the home.

How are Marital Assets Divided?

Marital assets are anything of value that was acquired during the course of a marriage. Examples of marital assets include:

  • Property
  • Cars
  • Jewelry
  • Large furniture
  • Financial assets and accounts
  • Small businesses

Divorce laws in Illinois indicate that assets obtained during a marriage should be divided equally, though in many cases, this is easier said than done. In order to truly split assets 50/50, they would need to be sold first, with the profit divided down the middle. This can be complicated for items of significant emotional attachment, and when it comes to who gets the house in a divorce, as your marital property is likely the largest asset shared by you and your former spouse.

If assets were obtained before the start of the marriage, the original owner will have the legal right to keep it. For example, if a woman bought a house before getting married, and then her husband moved in with her later, she as the owner would have more legal right to keep the home in her name alone.

Who Gets to Stay in the House During the Divorce?

When trying to determine who gets the house in a divorce, several factors must be considered:

  • Can the party who wishes to keep the home afford the mortgage payments, as well as all the other home-related expenses?
  • Is the intent to keep raising the children in the family home?
  • Are there other marital assets that can offset the loss of only one party obtaining the home (e.g. one party gets the house while the other gets the cars)?
  • Is either party planning to move in the near future?

The answers to these questions will help clarify a rightful plan of action for the home. As far as who gets to stay in the house during the divorce proceedings, this will again tie back to the owner of the home. If one party acquired the home before marriage, they are the rightful owner and get to remain in the house. If the home was bought during the marriage, it is considered community property with neither party having sole ownership rights. If there is an issue regarding physical or mental health abuse, a party can move to have the other party evicted, though that will require proof of imminent danger to the courts.

Get Help with Determining Who Gets the House in Your Divorce

Separating assets can be a complicated, painful experience, but the compassionate team at Conniff Law can help. We can answer your questions and guide you towards a positive resolution. Contact Conniff Law Offices to learn more about our divorce and mediation services.

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