In many families, the parties’ home is their largest and most valuable asset. Oftentimes, one party will want to stay in the marital home rather than sell it. This tends to happen in cases where the parties have children who grew up in the home and go to school in the area. Whether or not a party may stay in the marital home depends on the circumstances of the home and the parties’ finances.
First, it is important to know the value of the home and the current mortgage balance, or any other loans placed upon the home, such as a home equity loan. These numbers are used to determine whether the home has positive or negative equity. The home will have positive equity if its value is larger than what is owed on the home. Assuming the home is a marital asset, each party is entitled to his or her share of the equity in the home pursuant to Section 503 of the Illinois Marriage and Dissolution of Marriage Act. If the home has positive equity, then the party attempting to keep the home will have to pay the party moving out of the home his or her share of the positive equity. This can easily be done if the parties have other large assets that can be distributed accordingly, such as a retirement account, or if the party is affluent and has the money to pay the other party directly.
But what if the party cannot afford to buy out the other party’s share of the equity or simply does not have any other assets to distribute? In this situation, the house would likely be sold unless the parties agreed to some other arrangement. Pursuant to Section 501 of the Illinois Marriage and Dissolution of Marriage Act, a party may request the Court for “appropriate temporary relief.” If neither party can afford to keep the home, a party may use this Section of the statute to request that the marital home be listed for sale pending the divorce. If the marital home is sold during the pendency of the divorce, the Court may distribute the proceeds as agreed by the parties or, if there is no agreement, the Court would distribute the proceeds to the parties pursuant to Section 503 of the statute.