How Is Ownership of Real Estate Addressed During a Divorce?

If you are planning to get a divorce, you will need to be aware of many different financial concerns that could affect you. Perhaps the most important of these is the division of marital property. The process of dividing your marital property can be challenging, especially when it comes to valuable assets such as real estate.

Understanding how your home and any other real estate property you own will be treated during your divorce is crucial. A knowledgeable attorney can help you navigate the complexities of property division, ensuring that your financial interests will be protected.

Determining if a Home Is Marital Property or Separate Property

The first issue you will need to address when considering real estate during your divorce is determining whether a house or other property is considered a marital asset. Generally, marital property includes all property acquired by either spouse during the marriage, regardless of whose name is on the title. Thus, if you purchased your family home or any other property during your marriage, these assets will need to be divided between you and your spouse.

Separate property refers to any assets that were owned by one spouse before the marriage or acquired by a spouse as a gift or inheritance during the marriage. Separate property is typically not divided in a divorce, as long as it has been kept separate from marital assets. If one spouse owned a home or other property before getting married, that spouse will generally be able to maintain sole ownership of those assets. However, if separate property has become commingled with marital property, such as when one spouse contributes to significant improvements to a property, the spouse who owns the property may be required to reimburse the other spouse for those contributions.

Evaluating and Dividing Real Estate

Once the classification of real estate as marital or separate property is clear, the next steps involve valuation and division. Appraisals may need to be performed to ensure that both parties fully understand the value of the asset. You and your spouse have several options for dividing real estate property, including:

  • Selling the property: In many cases, the best approach may be to sell real estate and split the proceeds. This may be necessary if neither party can afford to buy out the other or maintain the home independently.
  • Buyout: One spouse may choose to buy the other's interest in the property. Whoever buys out the other spouse will most likely need to refinance the home to ensure that the terms of the mortgage are based on the buying spouse’s income and resources. The selling spouse will need to be removed from the home’s title.
  • Co-ownership: Though this option is less common, some ex-spouses choose to continue owning their family home together. They may do so to avoid uprooting their children, and they may agree to sell the home at a later date, such as when their children graduate from high school. In these situations, clear terms will need to be created to ensure that both parties understand their financial obligations toward the home, including how mortgage payments, utilities, and other expenses will be handled.

Contact Our Kane County, IL Property Division Lawyers

Determining how to divide real estate during your divorce can be a complex matter. Both you and your spouse may have emotional attachments to your home, or you may both rely on income earned from other properties you own. By fully understanding the legal and financial factors that may affect real estate ownership you can make decisions that will benefit you in the near future and in the years to come.

At Mirabella, Kincaid, Frederick & Mirabella, LLC., our St. Charles, IL divorce attorneys can provide you with guidance on the best ways to protect your rights and interests when dividing marital property. We will advocate for solutions that will provide for your ongoing financial success. To learn more about how we can help with your case, contact us at 630-665-7300 to set up an initial attorney meeting and learn more about how we can assist you.

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In honor of the passing of our founder, Joseph F. Mirabella, Jr., our offices are closed Friday, January 31, 2020.I Agree