You may have lived in the marital home with your spouse for years, raised your children in that home, and believe that you are entitled to half of the home. However, the legal aspect is much more complicated than that.
In Illinois, courts divide marital property equitably, not necessarily equally. For purposes of distributing property in a divorce, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property. There are some exceptions. For example, if one spouse received the property alone as a gift or inheritance, it remains that spouse’s own separate property.
The name in which property is held doesn’t determine whether it is marital or non-marital property. Regardless of whether title is held individually or by the spouses in some form of co-ownership most property acquired during the marriage is considered marital property, and both spouses have an interest in it. If your house qualifies as “marital property,” then it is subject to equitable distribution by the court.
However, if your spouse purchased the property prior to the marriage or with non-marital funds, it is likely that the house will not be considered marital. You may, nevertheless, be entitled to contribution if you invested monetarily in the home.
Once you have determined that the house is in fact marital and subject to equitable division, the question becomes how much of the equity you are entitled to. The first determination is whether there is any equity at all. A property’s equity is determined based on a valuation of the home minus any outstanding mortgages or liens on the property. If, after this calculation, there is a positive balance left, then that is the equity in the home, minus any costs should the house be placed for sale.
After determining what, if any, the equity in the home is, the next determination is what percentage you are entitled to. Absent any extraordinary circumstances, most property divisions are 50/50. There are circumstances when a court will award a disproportionate amount to one spouse. One consideration, for example, is when one spouse earns more income and is likely to continue to accumulate assets after the divorce while the other spouse will not. Another example is if one spouse has a greater amount of non-marital property.
If you are a homeowner and are in the middle of the divorce or about to file for divorce, talk to an attorney to determine how to protect your interest in the home.