If you are afraid to lose your home in a divorce, you may be wondering what you can do to keep living in it. Divorce is stressful enough without having to worry about searching for a new place to live. However, which party will remain in place after things are settled can be decided by a number of factors that extend beyond who pays most of the mortgage, although that is certainly an important one.
The fact is, adjusting to a new address is one of the major changes that most people will eventually face after their marriage comes to an end, either because it no longer makes sense to stay put or because the couple ends up selling the home. Even if you and your ex have agreed upon a short-term living arrangement, understanding how the law works in this area can provide some peace of mind during a difficult time. It might even help you and your attorney take steps to strengthen your case during the divorce proceedings.
Reasons You Might End Up with Your Home in an Illinois Divorce
In general, neither spouse is required by law to move out of the family home during a divorce, giving both parties time to make alternative living arrangements if necessary. As for what happens next, Illinois is an equitable distribution state, meaning marital property is divided in a way that is deemed fair according to the courts. When you meet with your lawyer, together you can evaluate what impact the considerations below might have on who will continue living in your home:
1. The Best Interests of Children
Do you and your ex have any children living at home? The courts will want to prioritize their stability and well-being. Who spends the most time with them now? Although the state of Illinois has been taking a more collaborative approach to parental responsibilities when parents split up, it is likely that one of you will be considered the primary residential parent after the divorce. If there is reason to believe your children will be spending more time in your care, the court may be more inclined to award you the house to minimize disruption to your kids’ lives.
2. Ownership of the Home
A home purchased during the marriage is generally considered marital property and subject to division. However, even if it was purchased before you got married, dealing with it can be complicated if the home was refinanced during the marriage or if marital funds were used for improvements or mortgage payments. The person who is perceived as being more capable of maintaining the home may also have an advantage if they hope to remain there.
3. Your Financial Circumstances
Your financial situation, including your ability to afford the home post-divorce, could be another factor. One spouse might end up refinancing the mortgage to buy out the other’s share of the home’s equity. In cases where neither person can afford the home, the court may order the sale of the house and split the proceeds equitably. To avoid involving courts, former spouses might first try coming to an agreement that is fair and just to both parties.
4. Who Has Contributed More to the Home?
Have you contributed significantly to the upkeep or improvement of the house? Monetary contributions you and your ex have made to the home can factor into the equation, but so can the sweat you put into making it what it is today. In addition to financial ones, try to think of non-monetary contributions such as homemaking or caregiving roles that might be taken into consideration.
5. Contractual Agreements Between Spouses
Do you have a prenuptial agreement or a postnuptial agreement? Having a contract in place in which both parties agree on how to divide their home can be highly useful in these situations. The document may not be the only deciding factor, but your agreement is likely to be upheld if the terms are deemed by the courts to be reasonable and fair under the circumstances.
Consult with the Family Law Office of David A. King About Your Divorce Concerns
Every divorce case is unique, and there may be other factors in your situation that could lead you or your ex to end up where you once lived as a couple. Even the length of your marriage could influence how the court divides your marital assets, and as a part of that the equity in a house or condo.
Reach out to the Law Office of David A. King, P.C. to discuss this and other asset division concerns that could impact the outcome of your divorce.
