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Who Gets the House in A Divorce?

Updated on
February 2, 2021
Article written by
Attorney Kevin O'Flaherty

In this article we will be discussing Who Gets the House in A Divorce, and we answer the questions of:

  • Is the House a Marital Asset?
  • Can Either Party Keep the House?
  • What Is an Equity Interest?
  • How is Equity Determined?
  • Can I Buyout the Other Person’s Interest?
  • If I Have the Majority of Parenting Time Will the Judge Give Me the Home?
  • What If I Cannot Afford to Make the Mortgage Payments on My Own?
  • What If I Cannot Get Approved for a Refinance
  • After the Divorce, How Do I Show My Spouse No Longer Has an Interest In the Home?
  • What if My Spouse Is Refusing to Sign the Quitclaim Deed After I Was Awarded the House?

In most marriages, the family home is the single largest asset that they have. More likely than not, it is going to be a major point of contention in reaching a final distribution of marital assets. The issue only becomes more complicated when the parties had children during the marriage as the children will also be affected by this decision.

Is the House a Marital Asset?

Most likely yes. Any property that was purchased during the marriage and with the use of marital funds is considered a marital asset. Marital assets are the property that needs to be considered when entering into the final judgment ending the marriage. If you have questions about where the home is a marital asset or not, please review our article on marital assets: How is Property Divided in Illinois Divorce?

Can Either Party Keep the House?

If the home is a marital asset, then either party can retain the home after the divorce. The home being a marital asset means that each person has an equal claim to possession of the property. Regardless of who retains possession of the property, each party is entitled to their portion of the equity interest in the property.

What Is an Equity Interest?

The equity interest is the difference between the sale value of an asset and any security payoff attached to that property. It is essentially the cash value in the concerned asset.

How is Equity Determined?

The equity interest is determined by subtracting the security interest payoffs from the sale value of the property. In the case of a house, the mortgage balance and any associated Home Equity Lines of Credit would be the most typical security interest payoffs. For example, if the house can be sold for $200,000 and there is a $150,000 mortgage, the equity interest is $50,000. In that case, each party is entitled to $25,000 as their interest in the property.

Can I Buyout the Other Person’s Interest?

Yes, and it is generally required in an instance where one party is seeking to keep ownership of a marital asset. Using the scenario from above, if you are going to keep the marital residence as your own, you will need to provide the other party with $25,000 in cash or allow that party to retain a larger portion of a separate marital property or account. Most often this balancing is done out of a retirement account interest.

If I Have the Majority of Parenting Time Will the Judge Award Me the Home?

In a situation where there are minor children between the parties, the judge may consider that as a factor in awarding full time possession of the marital residence. The judge will be trying to act in the best interest of any minor children in a divorce proceeding but that does not cure the issue related to the equity interest in the home. Additionally, if the parties cannot reach an arrangement as it relates to the possession of the marital residence the most likely scenario is that the judge will order the property be sold.

What If I Cannot Afford to Make the Mortgage Payments on My Own?

Generally speaking, if you cannot afford to make the mortgage payments without a second income, it is likely not in your best interest to seek possession of the property. The court may award you child support and possibly maintenance if appropriate. If you need more information on how maintenance is determined in the State of Illinois please review our article on maintenance: How to Calculate Illinois Spousal Maintenance in 2019.

What If I Cannot Get Approved for a Refinance?

If you are awarded the marital residence subject to a refinance, you will be required to complete the refinance within the appropriate time. If you are unable to complete the refinance process, you will likely need to sell the residence.

After the Divorce, How Do I Show My Spouse No Longer Has an Interest In the Home?

First and foremost, you will have the entered court order which defines ownership of the marital residence at the time of the divorce. You will also need a legal document known as a Quit Claim Deed (QCD) to transfer any ownership interest to the spouse retaining the property. This QCD will need to be filed with the appropriate recorder of deeds office prior to any refinance or sale being able to be finalized.

What if My Spouse Is Refusing to Sign the Quit Claim Deed After I Was Awarded the House?

In a situation where you were awarded a property in the final divorce decree, but your ex-spouse refuses to execute the necessary documents to transfer the property to your sole ownership with the appropriate deed you will need to take action to enforce your judgment and compel signature of the transfer deed.


Who Gets the House in A Divorce?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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