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Property Division: Dealing With The Marital Residence in Divorce?


Just like the rest of your marital property must be divided, so must the marital residence. However, many individuals have a difficult time letting go of their home, especially if there are children involved who are in school, sports, and other activities.

Most people assume that the marital residence must be sold as part of the divorce process. This isn’t always the case and in many divorces, one spouse may actually keep the marital residence. We recently helped a client in Aurora Illinois with a particularly complicated case of asset division – and the process raised a lot of questions. We thought it would be helpful to address those questions here:

You May be Able to Remain in the Marital Residence After Divorce

Many people, including our clients from Aurora, are relieved to hear this as it is one part of their life that doesn’t have to chance following divorce. But it’s important to recognize the instances in which this is possible to see if you will also be able to avoid moving as part of your divorce.

In divorces where one spouse is able to keep the marital residence, it’s because they can afford to do so on their own. If both you and your soon-to-be former spouse are on the mortgage together, you’ll need to successfully refinance the home in your name within a set amount of time as part of the divorce judgment. Likewise, you may have to pay your former spouse money for his or her equity in the residence if the house had been sold. This amount of money must also be paid within a set amount of time.

This means that keeping the marital residence may be costly – as was the case in the recent situation with our client in Aurora. However, it is an option you can consider depending on the unique details of your case.

Common Reasons Why the Marital Residence Must be Sold

In some divorce cases, neither spouse is able to afford the marital residence on their own. This is the main reason why many sell their home as part of their divorce.

In highly contested cases, the marital residence is sometimes sold to pay for attorney’s fees. In others, it must be sold to pay down marital debts. This depends on your unique situation and what makes the most sense for both you and your spouse once the divorce is complete.

What the attorney found in our Aurora client’s case – neither of them wanted to keep the martial residence. Some spouses simply both don’t want the marital residence and want to begin anew following their divorce. Of course, this remains an option to any couples as well.

What Counts as “Property” in a Divorce and How Property is Divided

When you get married, you’re doing more than agreeing to spend your life with your spouse. In fact, aside from non-marital property you’ve acquired prior to the marriage, you’re agreeing to share everything you have (and your spouse vice versa).

When you get divorced, however, this doesn’t mean that you’ll necessarily receive 50 percent of everything. In fact, there are several factors that we brought up in the recent Aurora Illinois case which influence asset division. In this article, we discuss some of these common factors to give you a better idea of what to expect in your unique case.

Before you even consider how an asset is divided in divorces, it’s important you understand what is considered an asset under the Illinois Marriage and Dissolution of Marriage Act (IMDMA).

In any divorce, there are two types of property to be considered:

  • Marital Property – Marital property refers to assets, including debts and any other obligations, that were acquired by either spouse during the course of the marriage. However, this asset excludes non-marital property. Speaking of which…
  • Non-Marital Property – There are several types of non-marital assets. Generally speaking, non-marital property is an asset acquired before a marriage that falls under one of several classifications under the IMDMA.

According to the IMDMA, non-marital property includes:

  • An asset that’s acquired as a gift or as an inheritance.
  • An asset acquired in exchange for other assets that was acquired before your marriage.
  • An asset acquired by either you or your spouse after a judgment of legal separation, if you are legally separated.
  • An asset excluded as marital assets, whether through a prenuptial or postnuptial agreement.
  • An asset acquired before the marriage, provided that it is unrelated to retirement plans.

Of course, there are other, more complicated, definitions of non-marital asset in the IMDMA. This was the situation with our recent client in Aurora. However, this should give you a rough idea of what is commonly considered a marital asset under the law.

Is Non-Marital Property Ever Divided as Marital Property?

Just because an asset was acquired before the marriage doesn’t mean that it isn’t considered to be marital. In fact, the court will evaluate each piece of property to determine whether it is marital or non-marital.

For example, if you owned a home prior to your marriage but transferred co-ownership to your spouse upon getting married, it will be considered a marital asset rather than a non-marital asset. This same logic may apply to other assets such as retirement accounts, bank accounts, and other assets.

Is Property Always Split 50/50 in a Divorce?

To put it simply: No.

Illinois divorces – regardless of whether you’re in Aurora, Naperville, or anywhere else in IL – include what is referred to as an “equitable distribution” of an asset. This means that you won’t be splitting every asset (or debt) with your spouse on a 50/50 basis. Instead, all assets will be divided based on a number of facts relevant to the marriage.

Consider this: If you solely funded the down payment on your marital residence and paid the mortgage long after your spouse decided to leave the home, you may be awarded the marital residence or a greater share of the equity in the home. This is just one example, but hopefully it gives you a better idea as to how asset division is considered “equitable” by the court.

Marital vs. Nonmarital Property: What’s the Difference?

In any divorce, there is marital property and nonmarital property. While the two have different names, the other differences between them can be a bit confusing, especially when it comes to asset division and who gets what in a divorce.

In this article, we discuss the difference between marital and nonmarital assets and how it is divided in a divorce. If you’ve been curious about this or concerned about the same, you’ll find the answers you need below!

What is Marital Property?

A marital asset is any asset that either spouse acquired during the marriage. This may include an asset that was at one point nonmarital, meaning one spouse owned or bought it before the marriage, that was later transferred into co-ownership after the marriage.

Most often, marital property includes bank accounts, vehicles, homes, retirement accounts, and other assets. A marital asset also includes marital debts, such as credit cards, and other obligations. All of this marital property will be divided equitably in a divorce, but we’ll discuss more on the division of assets below!

What is Non-Marital Property?

Non-marital property stands in direct opposition to a marital asset. It is an asset that falls into one of several categories under the Illinois Marriage and Dissolution of Marriage Act (IMDMA).

Some of these categories include:

  • An asset acquired as a gift, or by legacy or descent;
  • An asset acquired in exchange for an asset acquired before the marriage;
  • An asset acquired by a spouse after legal separation;
  • An asset excluded by a premarital or postnuptial agreement; and
  • An asset acquired before the marriage.

There are other situations that may apply. By speaking to Larry at 630-470-9990, you can better determine what kinds of assets may be excluded in the divorce.

How is Property Divided?

Many people wrongly assume that all assets (and debt) is divided 50/50 in a divorce. However, this isn’t the case.

Illinois is known as an equitable distribution state. That means that, for example, if one spouse earns more than another, the lower-earning spouse may be awarded more the marital asset. The facts of each case will determine how an asset is divided and as such, it’s important you speak with an experienced divorce attorney.

If You’re Concerned About the Division of Property in Your Divorce, Contact Lawrence R. Surinak Ltd.!

At Lawrence R. Surinak Ltd., we focus exclusively on family law and divorce and have done so for over 35 years. By contacting us today, you can discuss the specifics of your case and take advantage of a free, 30-minute consultation with Larry.

Contact us at 630-470-9990 to schedule your free consultation or request your consultation online to get started! We look forward to providing assistance and offering guidance on your case!

Concentrated on Family Law

Lawrence R. Surinak Ltd. is a law firm concentrating solely on family law and has served clients in DuPage, Will, Kane, and Kendall counties for over 35 years.

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About Attorney Lawrence R. Surinak Ltd.

Lawrence R. Surinak Ltd. is a law firm concentrating solely on family law and has served clients in DuPage, Will, Kane, and Kendall counties for over 35 years.

We continue to work with clients in Naperville, Wheaton, Lisle, Oswego, Downers Grove, and the surrounding areas to provide one-on-one support and attention that will help you through this difficult time.

If you have any questions or concerns, please feel free to contact us at any time. We look forward to offering our expertise and support to you throughout your case and after.