Can a Judge Force You to Sell Your House in Illinois Divorce Cases?
March 17, 2021 | Divorce, Property
Yes, a judge can force you to sell your home before your case ends or at the end of your case. During a divorce, all marital property must be distributed.
There are two ways to distribute a house: 1) a buyout by one spouse of the other’s interest, or 2) selling and dividing the proceeds of the sale. Divorce judges take a practical approach to a possible sale of a house. They will ask: Does one spouse want the property? If yes, can that spouse realistically buy the other spouse’s interest (either through cash or bartering other marital assets)? If either answer is no, then the question is not IF the house will be sold, but WHEN.
There may be good reasons to sell the house as quickly as possible. For example:
- The house is a money pit that needs to be sold in order to preserve the estate
- The parties cannot afford the mortgage or other expenses
- The house needs to be sold because the parties need the money
- Neither party wants to live in the house
- To avoid foreclosure
- To take advantage of a hot real estate market
There may, however, be good reasons to wait to sell the house. For example:
- It is a bad real estate market
- The parties cannot afford to move into two separate houses
- Selling the house is not in the best interests of the children
How is a forced sale related to the best interests of the children?
If minor children live in the house then their interests must be considered. For example:
- If the house is sold, where will the kids live?
- Will they be able to continue at their school?
- Do the children need to stay in their current community?
- Will the children be able to maintain their current friendships?
How is a forced sale related to property distribution?
Any proceeds of the sale of the house must be distributed “equitably” between the parties. Usually, this occurs when the marriage is officially dissolved. If the house sells during the divorce case, the proceeds will most likely be put in an escrow account until further order of the court. The judge could then distribute the funds to the parties, or use them to pay marital or litigation expenses.
How is a forced sale related to a Judge’s power?
The concept of a right to “life, liberty, and property” was influential in the drafting of the United States Constitution. So, our government usually cannot tell us what to do with our property. The notion that a judge can order the sale of a piece of private property is, therefore, an unusual and extraordinary governmental action. But in divorce cases, it happens ALL the time. This is one example of the judge’s extraordinary power over the parties of a divorce. Another example is a judge telling divorcing spouses when they get to see their children. Most divorce judges prefer the parties to decide these personal matters by negotiation and settlement. But in cases where the parties cannot agree, judges are forced to make these personal and impactful decisions. The parties should avoid relinquishing control of their lives to a judge who knows nothing about them.
In summary, marital property must be distributed and/or disposed of during divorce proceedings. In this regard, a judge has great power. Typically, a judge will order the sale of a house if it is necessary to do so and/or if the parties cannot agree on what to do with the house. Oftentimes, both parties want to sell their home because it is an expensive reminder of a failed marriage. It is usually best for the parties to agree on when to sell the house, and what to do with the proceeds of the sale. Otherwise, they risk being unhappy with a judge’s order.
The Botti Law Firm, P.C. has been practicing family law in the Chicago area for over 50 years. Please contact us at (630)573-8585 to schedule a free consultation with one of our experienced attorneys.