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Understanding Ownership of a Marital Home in Illinois Divorce Cases

Posted on in Divorce

Joliet divorce attorney marital property real estateWhen two people get married, they usually have every intention of building a life together. In most cases, this means sharing their assets and assuming joint responsibility for their debts and obligations. When a couple decides to get divorced, they are faced with the task of dividing those shared assets and debts. Under the law in Illinois, marital property must be divided between divorcing spouses in a manner that is fair and equitable based on the couple’s circumstances.

It can be difficult, in some cases, to know for sure whether a particular asset should be considered marital property. This is especially true for high-value assets like a car or the marital home that might have only one name listed as the owner. Can an asset that is titled in the name of just one spouse be considered marital property during divorce?

Whose Name Is Listed?

There are several factors that determine whether your home is a marital asset, and the name on the deed or mortgage is not usually among these factors. It is not uncommon for a couple to list just one spouse on a mortgage--often for credit reasons--but the name that is listed has virtually no effect on classifying the home as marital or separate property. While this may be surprising, the law regarding marital property in Illinois was designed to reduce confusion and to prevent spouses from manipulating their circumstances to gain an unfair advantage.

In Illinois, an asset is considered to be marital property if it was acquired during the marriage by either spouse, with exceptions for certain gifts and inheritances. Purchasing a home, of course, usually involves a mortgage, so the funds used to make mortgage payments must also be taken into account.

To put things in simpler terms, if you bought a house and paid off the mortgage before you got married, the home would likely be considered non-marital property, and you would get to keep it after your divorce. If, however, you and your partner bought your home after you got married and made payments using your regular wages, the home is almost certainly marital property, no matter whose name is listed on the mortgage.

Complex Situations

In recent years, many young people are waiting longer to get married than previous generations did. Remarriages are also more popular. In either case, one spouse may already have a mortgage on a home that his or her new partner moves into after the marriage. In such a situation, you would need to consider the portion of the home that was paid off before the marriage, as well as the portion that was paid off during the marriage. 

For example, if you were already 10 years into a 15-year mortgage when you got married, the remaining third would most likely be paid off using marital funds. This means that if your marriage were to end in a divorce, only the value of that remaining third would likely be considered marital property. Since a home cannot be easily divided, you would probably need to offer some form of compensation--including other marital assets--to your spouse so that you could keep the home.  

Contact a Will County Property Division Attorney

Identifying and dividing marital property during a divorce can be complicated, but an experienced Joliet divorce lawyer can help. Call 312-702-1293 for a confidential consultation at The Foray Firm today and get the guidance you need.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

BBA Of Will County Illinois State Bar Association Cook County Bar Association The National Bar Association BWLA
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