Who Gets the Family Home in a Divorce?

 Posted on October 13, 2020 in Divorce

For many people, a home is not just the place where they live and form memories, but is also a valuable asset, which makes addressing ownership of these properties particularly important during divorce proceedings. Unfortunately, deciding who, if anyone, will retain the family home upon divorce can be difficult, especially when both parties have an emotional attachment to the residence, so if you are contemplating divorce and you own your home, it is important to contact an experienced Naperville, IL property division lawyer who can help protect your interests.

Dividing Marital Property

One of the first things that a divorcing couple should address when deciding the fate of the family home, is whether the residence actually qualifies as marital property. This is an important assessment, as it is only marital assets, or assets that were acquired by either party after the marriage took place, that will be subject to equitable division upon divorce. Generally, those who bought their home with their spouse won’t have to worry about this requirement, even if only one party’s name is on the deed. If, on the other hand, a person or his or her partner purchased the home prior to marriage, it could constitute separate property, which would mean that it would belong to the original owner exclusively upon divorce. The only exception to this rule applies in cases where both parties helped contribute to the home’s upkeep during the marriage. In these situations, the asset could be considered commingled and so the property of both parties to some degree.

Selling the Property

In the event that a family home is deemed marital property, there are a few different ways that families can go about splitting up that asset, one of which is to sell the residence. This is a common choice for couples with acrimonious relationships, or in situations where neither party wants to remain in the home. Couples who go this route will need to obtain an appraisal and then upon listing and selling the home, must divide the proceeds in a way deemed to be equitable.

Retaining the Home in Exchange for Other Assets

Keeping the family home in a divorce can also mean that one of the parties needs to give up their rights to another marital asset of substantially equal value. The option, however, can prove challenging for those whose home is their primary asset, although assuming sole responsibility for the mortgage going forward could balance out the overall distribution of assets and debts between the parties. Alternatively, one spouse could choose to sell his or her interest in the home to the other party outright.

Contact a Naperville Property Division Attorney for Help

Ultimately, the fate of a couple’s home upon divorce will depend on their specific circumstances, so if you are thinking about filing for divorce and have questions about protecting your family home, please call one of the experienced DuPage County property division lawyers at J. Aldrich Law, P.C. for help. A member of our team can be reached at 630-953-3000, or via online message.

Source:

https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm