Am I Entitled to Money From the Marital Home in an Illinois Divorce?

When facing a divorce, one of the biggest concerns is whether you are entitled to receive money from the marital home. In Illinois, the division of property in divorce, including your home, follows the principle of equitable distribution, which means the court divides assets fairly, but not necessarily equally. The home is often a significant asset in a marriage, and understanding how the Illinois courts divide the home is crucial.

This blog will explain how Illinois courts decide who gets what when it comes to the marital home. We’ll cover important factors like financial contributions, income disparities, and even the potential for dissipation of assets. By the end, you’ll know what to expect from the process and how to protect your share of the home during a divorce.

How Is the Marital Home Classified in Illinois Divorce?

For purposes of distributing property in a divorce, all property either spouse acquires 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 exceptions, however, which can influence whether the marital home is subject to division.

Courts may consider evidence such as pre-marital purchase agreements, separate financial accounts used exclusively to pay for the property, or documents demonstrating that the property was acquired with non-marital funds.  Under Illinois law, the burden of proving non-marital property lies with the spouse claiming the exemption. Courts will assess any documentation supporting this claim (750 ILCS 5/503).

Below is a breakdown of how Illinois law addresses marital and non-marital property classification.

What Is Marital Property?

The name on the title of the property does not determine whether it qualifies as marital or non-marital property. Marital property includes most assets that spouses acquire during the marriage, regardless of whose name appears on the title. Illinois courts classify property acquired during the marriage as marital unless one spouse proves otherwise. For example, if a couple purchases a home during the marriage and pays for it using income earned during the marriage, the court will treat it as marital property.

A home titled in one spouse’s name still qualifies as marital property if marital funds pay the mortgage, taxes, or other expenses. Similarly, courts treat a portion of a non-marital home’s equity as marital if marital funds contribute to mortgage payments, taxes, or significant improvements. Courts analyze financial records and other evidence to determine how marital funds impact the property’s value.

What Happens When a Home Is Purchased Before Marriage

If your spouse purchased the property prior to the marriage or with non-marital funds, the court will likely classify house as non-marital.

Title changes, however, can alter this classification. For example, transferring the title of a non-marital home into both spouses’ names may convert it into marital property. Courts often view such transfers as evidence of intent to share the asset.

You may still be entitled to contribution if you invested monetarily in the home, such as through mortgage payments or renovations.

Exceptions to Marital Property Classification

Certain types of property are not considered marital, including:

1. Gifts and Inheritances: Property acquired as a gift or inheritance remains the separate property of the recipient unless it has been commingled with marital funds. Learn how to protect your inheritance.
2. Property Acquired Before the Marriage: A home purchased before the marriage is typically classified as non-marital property. However, if marital funds were used to pay down the mortgage or improve the property, the increased value may be treated as marital property.

How Commingling Affects Property Classification

Even property classified as non-marital can be reclassified as marital through commingling. For example:

• If marital funds are used to make mortgage payments, improve the property, or pay for repairs, the property may acquire marital characteristics.
• If the title to a home originally classified as non-marital is changed to include both spouses, this may convert it into marital property.

Courts carefully analyze these scenarios to ensure equitable distribution. For instance:

• They may calculate the value added to the property by marital funds or improvements and classify that portion as marital equity.
• They may also examine whether transferring a title was done intentionally to create joint ownership or as part of a misunderstanding.

Maintaining clear financial records is essential to determine whether a home should be classified as marital or non-marital property. Keep receipts for renovations, mortgage payments, or any transfers of title, as these can be critical in disputes.

How Courts Determine Your Share of Equity

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. For example:

• If one spouse earns more income and is likely to continue to accumulate assets after the divorce, while the other spouse will not.
• If one spouse has a greater amount of non-marital property.

Download Our Property Division Guide

Key Factors that Determine Your Entitlement to the Home’s Value

When determining what portion of a home’s value each party is entitled to, Illinois courts consider several factors, including financial contributions and income disparity.

In Illinois, property is divided equitably, which means fairly rather than equally. The court may grant a larger portion of the home’s value to a party who made significant financial contributions to the property. Similarly, if one party earns less or has fewer financial resources, they may receive a greater share to ensure fairness.

Additional factors, such as the duration of the marriage or one party’s contributions as a caregiver, may also influence the court’s decision.

What Are Your Options for Dividing and Receiving Money from the Marital Home?

There are three more common outcomes when dividing the marital home:

1. Selling the home and dividing the proceeds;
2. One spouse buying out the other; and
3. Continued co-ownership.

When parties wish to sell their home, the court will divide proceeds from the sale between them – the question that each case can hinge upon is what that division looks like (50/50, 60/40, etc.).

If one spouse will be buying the other out from the home’s value, the buyout is typically at the value of the home’s equity. Again, the proportional division will change based on each case.

A third option, which is very rare, is for the parties to continue to live in the same home as co-owners. This is very uncommon, and whether it would be a feasible option for your case is something to speak with an attorney about.

How Dissipation Can Impact Your Share of the Marital Home

In Illinois, dissipation and the mishandling of assets occurs when one party misuses marital assets, such as under-selling the home or neglecting its upkeep. These actions can significantly affect the division of marital property. For example, if one spouse wastes assets, the court may adjust the division of the marital estate. The court may order the spouse responsible for dissipation to reimburse the other or assign them a smaller share of the overall estate to offset the loss.

What to Know Before Selling the Marital Home During Divorce

To avoid accusations of dissipation, both parties must agree on the terms of the sale, including the price, before selling the home. Consulting an attorney to understand the potential legal and financial impacts of selling the home is a crucial step in the process

How Courts Calculate the Value of the Marital Home?

Typically, the court calculates the home’s value by comparing its fair market value to the outstanding mortgage(s). A professional appraiser evaluates the home to determine its fair market value.

Typically, the courts determine the value of the marital home by subtracting the total outstanding mortgage(s) from the home’s fair market value. This process often involves:

• Fair Market Value Assessment: A licensed appraiser conducts an evaluation to determine the home’s market value based on current conditions and comparable sales.
• Equity Calculation: The court calculates equity by subtracting any outstanding loans or liens on the property from the fair market value.

This valuation plays a key role in determining how the home will be divided between the spouses.

Tips to Protect Your Share of the Home’s Value

It is important to gather documentation regarding the home, including mortgage statements, repair receipts, contractor invoices, and the like. These records can be crucial in disputes over property classification. For example:

• Receipts showing marital funds used for home improvements can help establish your financial contributions.
• Records of title changes can clarify whether the home should be classified as marital or non-marital.

Maintaining detailed financial records ensures you have the evidence needed to protect your share of the property in a divorce.

Conclusion:  Understanding Your Entitlement

The marital home is often the largest asset to be divided in a divorce. Dividing its value can become complicated, especially when determining fair proportions. Understanding Illinois law and preparing thoroughly for the process is crucial.

If you’re unsure about how the marital home will be divided in your divorce, contact Anderson Boback & Marshall today for expert legal guidance.

Frequently Asked Questions About Illinois Marital Home in Divorce

Can I keep the marital home after divorce in Illinois?

Yes, you can keep the marital home if the court’s equitable distribution ruling allows it, or if you can buy out your spouse’s share of the equity. The court will consider factors like your financial ability to afford the home and whether keeping it aligns with the best interests of both parties, especially if children are involved.

How does Illinois define marital property?

Illinois defines marital property as assets acquired by either spouse during the marriage, regardless of whose name is on the title. Exceptions include property acquired before the marriage, gifts, or inheritances, as long as these were not commingled with marital funds. Courts presume property is marital unless proven otherwise.

How do I receive money from the sale of the marital home?

You receive money from the sale of the marital home when the proceeds are divided according to the court’s equitable distribution ruling. The court calculates equity by subtracting any outstanding mortgage or liens from the sale price, then allocates the proceeds based on each spouse’s contributions and financial situation.

What if my spouse wants to keep the home?

If your spouse wants to keep the home, they must buy out your share of the equity. This involves determining the home’s fair market value, subtracting any outstanding mortgage, and paying you your portion of the remaining equity. In some cases, the buyout may be offset by other marital assets during property division.

Can I get money if I didn’t contribute to the mortgage?

Yes, you can still receive money from the marital home even if you didn’t contribute to the mortgage. Illinois courts consider non-financial contributions, such as caregiving or household management, which allowed the other spouse to focus on earning income. The court also evaluates factors like income disparities and the overall needs of each spouse.

Is the value of the home always split 50/50?

No, the value of the home is not always split 50/50 in Illinois. Courts divide property equitably, which means fairly rather than equally. Factors like financial contributions, caregiving responsibilities, income disparities, and each spouse’s future financial needs can result in an unequal division of the home’s value.

Can I receive money from the marital home if my name isn’t on the title?

Yes, you can receive money from the marital home even if your name isn’t on the title. Illinois courts focus on whether the home qualifies as marital property, which depends on when it was acquired and whether marital funds were used. Financial contributions, including indirect contributions like caregiving, are also considered when dividing equity.

What happens if we can’t agree on how to divide the home?

If you and your spouse cannot agree on how to divide the marital home, the court will decide based on Illinois’ equitable distribution laws. This may involve selling the home and dividing the proceeds, ordering one spouse to buy out the other’s share, or awarding the home to one spouse and compensating the other with other marital assets. Courts prioritize fairness and consider factors like financial contributions and each spouse’s future needs.