Going through a divorce can be challenging, and couples will need to address multiple types of legal and financial issues. Many of the most significant concerns for divorcing spouses will be related to the division of assets and the family home in particular. If you are looking to maintain ownership of your home following a divorce in Illinois, there are several factors to consider. By working with a skilled divorce attorney, you can take steps to protect your interests and resolve financial issues successfully.
Understanding the Laws in Illinois
Before delving into the specifics of home ownership following divorce, it is essential to have a basic understanding of the laws in Illinois regarding property division. Illinois follows the principle of equitable distribution, which means that marital property is divided between spouses fairly but not necessarily equally.
Marital property includes any assets acquired during the marriage. If your family home was purchased after you got married, it will be a marital asset. However, if you owned the home before you got married, or if you received the home as a gift or inheritance, it may be considered non-marital property, and it could potentially be excluded from the division.
It is also important to understand when a separately-owned home may become “commingled” with marital property. If the combination of different types of assets makes it difficult to distinguish between marital and non-marital property, separate assets may be converted to marital assets. For example, if you owned your home before getting married, but you and your spouse made improvements to the property during your marriage and used marital funds to make mortgage payments, a percentage of the equity in the home may be considered marital property.
Negotiating a Property Settlement With Your Spouse
If you are looking to maintain ownership of your home, you may negotiate an agreement with your spouse to ensure that all of your marital assets can be divided fairly. For example, you may agree that you will be the sole owner of your home, and your spouse will own other assets that are equivalent in value to the home’s equity.
It is crucial to approach negotiations with a clear understanding of your financial situation and the value of the home. You will also need to make sure you will be able to address ongoing financial concerns as a homeowner. By reviewing your budget, you can make sure you will be able to make ongoing mortgage payments, cover the costs of utilities and maintenance, and pay property taxes. Consulting with a knowledgeable divorce attorney can help you navigate the negotiation process and ensure that your rights and interests are protected in your divorce settlement.
Co-Ownership and Co-Parenting Arrangements
In some cases, divorcing couples may choose to maintain joint ownership of the family home. This may be an option when a couple shares children and wishes to avoid uprooting them from their home and neighborhood. Co-ownership of a home can ensure that children can continue living in a familiar environment, providing them with stability during a challenging time. In some cases, parents may choose to utilize a “birdnesting” schedule in which each parent will live in the family home with children during their scheduled parenting time while also maintaining separate residences where they will live at other times.
Co-ownership arrangements typically involve creating a detailed agreement that outlines each party's rights and responsibilities regarding the home. This agreement may include provisions for sharing expenses, determining occupancy schedules, and addressing potential future sale or buyout options. If you are considering this option, your lawyer can advise you on the legal issues you may need to address and the solutions you can put in place to protect your rights and financial interests.
Refinancing the Mortgage
If you and your spouse currently have a joint mortgage on your home, you will need to refinance the mortgage in your name alone after assuming sole ownership. By refinancing, you can remove your spouse's name from the mortgage and assume full responsibility for the loan. However, refinancing may not be feasible for everyone, especially if you do not meet the necessary financial requirements or if the home's value has decreased since it was originally purchased. If you will not have the means to refinance the mortgage and assume sole ownership, you and your spouse may choose to sell the home instead and divide the proceeds during your divorce.
Contact Our St. Charles Property Division Lawyers
When addressing issues related to home ownership during divorce, it is essential to have a skilled legal advocate on your side. At Mirabella, Kincaid, Frederick & Mirabella, LLC, our Kane County marital property division attorneys can help you navigate the process of negotiating a divorce settlement. We will advise you of your rights and advocate for your interests, helping you reach an outcome that will meet your needs. We will also help you understand the potential tax implications of maintaining ownership of your home and ensure that all necessary legal documents are properly drafted and filed. We understand the challenges you are facing, and we are here to provide the guidance and support you need during this difficult time. Contact us at 630-665-7300 to get the legal help you need during your divorce.
Sources:
https://www.homelight.com/blog/divorce-real-estate-questions/
https://realestate.usnews.com/real-estate/articles/what-to-do-with-a-house-in-a-divorce
