You can be forced to sell a house in a divorce if a judge orders it, but this usually occurs if it is the only way to ensure equitable distribution. Courts would rather spouses negotiate home sale agreements between themselves, but do impose sales if they see no other option. Alternatives such as buyouts, deferred sales, or co-ownership may be workable if both spouses agree in Chicago or Des Plaines.
An experienced divorce lawyer in Illinois can help you figure out your options. Call The Rogoff Law Group at 847-768-2194.
How Is Property Divided in an Illinois Divorce?
Illinois uses equitable distribution principles to divide marital property fairly, but not necessarily equally. Marital property typically includes assets the spouses acquired during the marriage, often regardless of whose name is on the title.
Nonmarital property, which may include assets one spouse owned before the marriage or received during the marriage as a gift or inheritance and kept separate, remains with the owner. Commingling nonmarital property with marital property may mean the former is considered marital property, though. Courts use factors such as these to determine equitable distribution:
- Each spouse’s contribution to acquiring or preserving the marital property, or increasing its value
- Length of the marriage
- Each spouse’s financial circumstances
- Each spouse’s age, health, work situation, and employability
- Any obligations from prior marriages
- Any prenuptial or postnuptial agreements
Prenuptial or postnuptial agreements usually take precedence over equitable distribution laws. If you fear being forced to sell your home in the eventuality of a divorce, you could draft such an agreement for protection and peace of mind.
Since Illinois is a no-fault divorce state, it usually does not matter for property division if marital misconduct occurred. Exceptions may apply for hidden assets, wasted marital funds right before the divorce, court order violations, or clauses in prenuptial or postnuptial agreements.
When Can a Judge Order the Sale of a Marital Home?
Judges have the authority to order sales of marital homes in situations such as the spouses’ financial need or inability to agree. You could also be forced to sell a house in a divorce if the home sale is necessary for equitable asset distribution. This might occur if the other assets are not enough for a balanced distribution.
Financial necessity may be the case if it is too expensive for the spouses to keep up the home and neither can afford it independently. Meanwhile, if the spouses disagree on who keeps the home or how to handle its disposition, the court may order a sale to resolve the deadlock.
What is an amicable divorce, and can you still be forced to sell your home in one? Amicable divorces have a focus on cooperation and minimal conflict. Forced home sales are still possible, but it typically would be financial or life circumstances, rather than a judge, doing the forcing.
Alternatives to Selling a House in a Chicago or Des Plaines Divorce
Courts prefer that spouses agree between themselves what to do with the marital home, rather than have judges decide. Homes typically are personally and financially important to spouses, and negotiated settlements are more empowering.
Alternatives to selling the marital home in divorce include deferred sale and one spouse buying out the other. In a deferred sale, the spouses often agree to sell the home at a later time, which allows one spouse to remain in the home for the time being. A deferred sale is most common with situations where it allows custodial parents to remain in the home with the children. This type of agreement requires clear terms on expenses and the sale date in the future.
If one spouse is interested in buying out the other, the interested spouse needs enough money to do so or enough assets to compensate the other spouse equitably for his or her share of the house.
Co-ownership is another alternative, with the spouses keeping their joint ownership of the home and sharing expenses. A high level of cooperation is necessary, and clear agreements are very important to prevent disputes in the future.
Reasons for co-ownership include stability for the children, a down real estate market in which selling during the divorce means a financial loss, or if one spouse needs time to qualify for a mortgage to buy out the other spouse. Alternatively, the spouses may see huge appreciation potential in their home and perhaps rent it out for the time being and sell it later for a nice profit. A divorce lawyer should be able to explain the realistic options in your situation.
What Happens If One Spouse Wants to Keep the House?
An Illinois divorce checklist should include goals or priorities, and a common one is keeping the house. If one spouse wants to keep a home in Chicago or Des Plaines, he or she must be able to pay expenses such as the mortgage, taxes, insurance, and ongoing maintenance.
In Chicago, the monthly median homeownership costs with a mortgage are $2,295. The spouse would need to qualify alone for a mortgage refinancing and be able to offer equitable compensation to the other spouse. This could be through a lump-sum payment or other assets.
How a Divorce Lawyer Can Help Protect Your Property Rights
Illinois divorce property division rights get complicated. A lawyer can offer guidance specific to your situation, help identify assets and their value, ensure equitable distribution, and handle negotiations that allow you to bypass stressful and expensive court litigation.
Lawyers can also help with how to find hidden assets in a divorce if you suspect concealment. Newly discovered assets could avoid you being forced to sell your house.
The Rogoff Law Group may be able to identify alternatives to being forced to sell a house in a divorce. Contact us today.
