A house that is marital property must be divided at divorce. Since literally cutting the house in half is not an option (although some guy in Germany did it), dividing a house at divorce must be done using other methods.
The simplest solution is putting the house on the market and splitting the proceeds of the sale. Since Illinois is an equitable distribution state, and it is not a community property state, the proceeds of the sale do not need to be split 50/50.
When the house has been the marital residence, one spouse may want to keep the house. This usually occurs when there are minor children who have been living there. This presents challenges.
The divorcing couple can agree the spouse staying in the house “buys out” the other spouse. This occurs when the spouse pays the other spouse for his or her interest in the house. In order to do this, the house’s value needs to be determined. This can be done through appraisal or market analysis. Once the house is valued, the spouse keeping it would give the other cash for his/her interest. Alternatively, the spouses could barter. The spouse keeping the house could give the other spouse some other asset like a retirement account or investment account. If there is no agreement, at trial the judge could order the house sold or could award it to one spouse while awarding other assets to the other spouse.
Assuming one spouse buys the other spouse out of the house, then the spouse relinquishing his/her interest in the property needs to be removed from title of the property. This is done with a quit claim deed that transfers one spouse’s interest in the property to the other spouse. This quit claim deed is then filed at the county recorder’s office.
When one transfers his/her interest in the property he/she usually wants to be taken off the mortgage, if there is one. This can create issues because the spouse keeping the property may have to refinance and qualify for a loan on his/her own. For a spouse who has been a homemaker and has no independent income this can be challenging.
All issues that arise when a house needs to be divided can be resolved with an experienced divorce attorney. The Botti Law Firm has been serving DuPage and Cook County residents for nearly 50 years. If you would like to speak to one of our experienced attorneys, please email us or call (630) 573-8585 to schedule a free consultation.
The Botti Law Firm, P.C., conveniently located in Oak Brook and Wheaton, is a full service law firm that offers comprehensive legal representation to individuals, families, businesses and professionals from the Chicago area, including Cook, Kane, DuPage, Lake, Will and Kendall Counties, to the rest of the United States. Our experienced trial attorneys are dedicated to obtaining successful results for our clients, in both state and federal courts.
Contact the Botti Law Firm, P.C. to learn more about our different practice areas and how we can best address your legal concerns. Call (630) 573-8585 to speak with one of our attorneys.
