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How is Property Divided During a Divorce?



In Illinois division of property during a divorce must be equitable. This does not mean equal parts, but instead that the property is divided fairly between the two parties. As a result, an Illinois court doesn’t automatically order a 50/50 split but looks at all factors to find a division that is fair.


The big question is: Who gets to stay in the home?


In this blog post we answer that, but first we examine the key elements of shared property and what a judge will consider before making a decision.


Marital versus Separate Property in Illinois

Determining whether the property is marital or separate is the first step. Marital property is property that was purchased together but not necessarily jointly. That means, even if just one spouse made the purchase, if they were married at the time, it is considered marital property. Separate property is property purchased by one spouse prior to the marriage or inherited by one party even after marriage.

However, spouses must keep in mind that even if they owned a property prior to marriage and then the mortgage is paid from the marital funds, the house could be considered marital property, or what is referred to as “commingled property.” A judge often has to determine what type of property the house falls under. Real estate brokers hired to sell a home during a divorce need to understand the type of ownership.


What is Considered to Ensure Fair Division in Divorce?

In Illinois, the judge typically considers the following:

  • Prenuptial agreements

  • How long the couple was married

  • Age, health, and station in life for each spouse

  • Whether alimony is involved

  • Personal details, such as occupations, vocational skills, and employability

  • Property value

  • Debts and financial needs

  • Potential for each spouse acquiring assets and income in the future

  • Existing obligations from past marriages, such as child support

  • The contributions each spouse made to the acquisition, preservation, or increased value of the marital property

  • If either spouse contributed to a decrease in value or waste of marital or separate property

  • Each spouse’s economic circumstances

  • Custodial arrangements for children

  • Tax consequences of the property division

All of these factors will affect a judge’s final decisions.


Who Gets to Live in the Home?

If both or one of the spouses wants to remain in the home, this can get a little more complicated. In this situation, the courts are faced with the challenge of considerations, like who seems to desire to live in the family home more. Who the children live with also plays an important role in who has more of a right to live in the home for a reasonable period of time.

Of course, a major consideration is if the spouse wishing to remain in the home can pay for the expenses on their own. Additionally, should a spouse win the rights to live in the home because the judge determines this is the best way to help provide stability for the children, it doesn’t mean they get to live there for free. The judge will award what is called a buyout of the other spouse, so they receive financial compensation for their share.


Since a real estate attorney is a neutral third-party--not having represented either party in the divorce--they can often help with determining the disposition of the property: sale, short sale, modification, refinance. Only a sale or refinance will get a spouse who no longer wants to be tied to a property off of the mortgage. There is no other option. If the parties cannot agree to cooperate, it may need to go back to the divorce lawyers for the court to resolve. A party who is stuck on a mortgage without the ability to get a resolution will generally find it difficult to buy other property in their own name.


We Can Help


With almost 40 years of experience in Illinois real estate law, Erica Minchella has the expertise to address the division of property in a divorce. Get started by scheduling a consultation today.


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