The main focus in any dissolution of marriage proceeding is to divide the parties’ property and terminate the marriage. If there are minor children involved then custody and visitation are also important, but from a financial standpoint, division of the property is what can stall a dissolution of a marriage. Many parties own real property together, and said real property may or may not be titled in both of the parties’ names. This can cause hesitation for a lot of parties wishing to dissolve their marriage since they do not know how these scenarios are usually handled.
First and foremost, in Illinois, all property acquired by the parties during the marriage (and sometimes in contemplation of marriage) is considered marital property, no matter how it is titled, and no matter whose name is on any associated debt. Unless a party can prove property is non-marital, it is considered marital. In the event that any such marital property has a debt associated with it, the party that wishes to keep the property must re-finance and remove the other parties’ name from the debt, usually within a specific period of time. The exact length of the period of time depends on the factual circumstances of the case, but usually can be a few months up to two years. In the event that the party cannot remove the other party’s name from the debt within the specified period of time, there are usually provisions in a Judgment for Dissolution that can force a sale. Thus, the refinance and removal of the other party’s name does not necessarily need to happen before a divorce is final.
In the event that the parties both want a piece of property, the Courts will usually order it sold and tell the parties they must pay off any debt attached to the property and split any remaining proceeds. If the property is real property, such as a home, and there is no equity in the home (i.e. it would be worth nothing if it were sold because of too much debt attached, etc.) a lot of parties look into the option of a short sale, if they are eligible, to dispose of the property.
The bottom line is that any property with debt associated with it must be disposed of, or, the party that wishes to keep it must get the property titled and any attached debt transferred, into their own name. The Courts generally don’t favor parties retaining property together upon divorce, and if parties contemplate doing so, they should talk to an attorney about how said property should be retitled upon divorce so there aren’t any unintended consequences for estate planning purposes.