The divorce process involves making difficult decisions that will not only impact your life but more importantly that of your children. Next to child custody, and support issues, the issue that is most commonly contested is the continued ownership and/or sale of the marital residence.
The marital residence is in many instances the most valuable asset that a couple owns. Furthermore, one or both spouses often has strong emotional ties to the residence and wishes to remain there. The marital residence is also directly tied into decisions involving the best interest of the children as many couples have a strong preference to keep children in their home following the divorce in order to maintain as much stability as possible in the children’s lives.
With proper guidance, the disposition of the marital residence does not have to lead to a protracted and costly legal battle as there are several options for couples to consider. These options include but are not limited to the following: 1) selling the residence and dividing the net proceeds; 2) reaching an agreement for one spouse to be awarded the residence subject to a buyout of the other spouse’s interest or an offset in the division of other marital assets such as a retirement account; and 3) reaching an agreement to sell the residence at a future date in time (i.e. after the children graduate from high school) and dividing the proceeds.
It is critical to work with an experienced family law attorney who can guide you through this process and help you to best address difficult property division issues.
In a divorce, the characterization of property must first be determined before a judge can divide property or order property to be sold. In the State of Illinois, pursuant to the Illinois Marriage and Dissolution of Marriage Act, property is classified as either being “marital property” or “non-marital property.” If property is acquired during the course of the marriage it is considered to be marital property and subject to “equitable distribution.” Whereas property acquired by a spouse prior to the marriage, through an inheritance or a gift will be classified as non-marital property. The Court does not have jurisdiction over non-marital property and it is not subject to division.
It is important to use an experienced attorney whose practice focuses on Family Law issues as division of assets involves complex and nuanced matters that an inexperienced attorney may miss to the client’s detriment.
As a starting point in evaluating their own divorce cases, couples should start with the presumption that “equitable distribution” will more often than not result in an equal division of marital assets and liabilities, with each party being awarded fifty (50%) percent. However, the division of assets and liabilities is far more complicated than this brief and general explanation.
There are often additional factors that the Court will take into consideration in determining whether one spouse should be awarded more than fifty (50%) percent of the value of a particular asset or the equity in the marital residence.
Questions that must be addressed include: a) who paid for the down payment?; b) did the down payment come from a marital bank account or from a bank account belonging to one of the spouses prior to the marriage? These and other questions must be closely scrutinized by your attorney as the answers will have a direct impact upon the division of assets and your future.
Even in instances where couples agree that one parent should stay in the marital home with the children, that decision should never be made in a vacuum by either party. Despite the emotional ties and desire to keep children in their homes and community, it is important to consider all possible options and outcomes and how this may affect you and the children. Careful consideration must be made to determine the most optimal split of assets in order to best secure a client’s financial future.
The decision to stay in the marital residence should not be made at the cost of a vastly diminished lifestyle or giving up all interest in a valuable retirement assets. The present as well as the future must be considered. For many spouses who remain in the marital residence, they frequently end up being “house poor” with a disproportionate share of their income going to paying the expenses of the home rather than other critical necessities. A spouse who wishes to buy out the other spouse’s interest must also often determine whether or not they will quality for a mortgage as refinancing is usually a requirement in order to remove the other spouse from liability.
Attorneys have the skill, legal expertise and experience to guide you through these difficult decisions. Please contact a divorce lawyer in Lake Forest, IL to arrange your free initial consultation.
Thanks to Hurst, Robin & Kay, LLC for their insight into family law and divorce.