What Happens to the Marital Residence During a Divorce

If marriage is about joining two lives together, then dissolving a marriage involves making important decisions about how things must be divided. More often than not, this includes the family home. As you start to learn more about divorce here in Illinois, one of the most important considerations is what may happen to your marital residence. 

For most of us, buying a home is one the largest purchases we’ll ever make. Purchasing real estate is a huge decision, and a major financial undertaking. At the same time, home is about so much more than just four walls and a lawn. It’s where couples share meals, make memories, and raise their kids. 

While the separated couple may find it unbearable to live under the same roof, there are other factors that must be addressed — including the many financial realities involved, along with the comfort, safety, and well-being of your children. As a result, matters relating to the marital residence can quickly become complicated and contentious. 

Let’s explore what happens to the marital home in an Illinois divorce — including how one party may get exclusive possession to the marital residence during divorce proceedings, and what might happen to this major piece of property after the divorce has been finalized: 

Who Gets to Live In the Marital Residence During a Divorce?

Can both spouses continue living under the same roof while the divorce is ongoing? Should they? If the spouses can’t live in the same residence, who should take on the financial and personal burden of moving? 

In Illinois, finding the answers to these decisions is not always cut-and-dry. Talking with an attorney is an important step in figuring out all of your options, and determining a possible course of action. There are a lot of personal and financial factors that must be addressed based on your unique circumstances, particularly if both spouses want to continue sharing parenting time. Can each spouse afford to live separately? How will this new physical separation impact the children? Is one spouse willing to move voluntarily? Could living under the same roof actually make your divorce more adversarial, or negatively impact your kids? 

Generally speaking, Illinois law does allow for one spouse to be evicted from the marital residence under certain circumstances:

Filing for Exclusive Possession of the Marital Residence

Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the court can make decisions on the allocation of the use of a marital residence in certain circumstances,  specifically, in cases,

“where the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses.”

Generally speaking, there is a fairly high standard for establishing “jeopardy” in such situations, and a petitioner must be able to convince the court that the situation is dangerous or hazardous for themselves or their children. Typically, a stressful or emotionally taxing environment is not necessarily going to be enough to meet the standards for “jeopardized physical or mental well-being.”

The IMDMA also makes clear that in entering an order, the court must “balance hardships to the parties.” In practice, this may mean considering how difficult it will be for each party to move, based on their income, their current standards of living, and so on. 

Importantly, a temporary order granting the exclusive possession of the marital residence to either spouse is not meant to be a final decision about who will be awarded the residence in the divorce. The IMDMA specifies that a temporary order “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding.” A temporary order may be revoked or modified before the final judgment, and terminates when the final judgment is entered, or if the petition for dissolution of marriage or legal separation is dismissed.

Orders of Protection

Under the Illinois Domestic Violence Act (IDVA), exclusive possession of the marital residence may be achieved through an order of protection. This is an emergency, interim, or plenary order issued by a court, which restricts an abuser’s ability to access their family or household members. 

As the office of Illinois Attorney General notes in a writing, an order of protection may be used to bar an abuser from a shared residence, or to order them to stay away from specific locations (such as your place of work or a child’s school). 

Under IDVA, physical harm, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation may all constitute abuse. 

In order to obtain an order of protection, one spouse may work with their attorney to file in civil court, or if unrepresented, they may obtain the necessary papers through their local circuit court clerk’s office. Orders of protection may also be requested during a divorce or during a criminal trial for abuse. Many local domestic violence programs also offer help for those who need assistance with obtaining  an order of protection. If you are facing domestic violence and in need of assistance, click here for more information and local resources that can help. 

In Illinois, What Happens to the Residence After a Divorce?

Generally speaking, the marital residence is considered marital property in a divorce. Here in Illinois, this is a broad category, encompassing all assets and property acquired over the course of the marriage, usually without special regard to how the property is titled 

More often than not, a couple’s primary residence will constitute marital property, though there are some specific, limited cases in which it may not qualify — such as if the residence was inherited solely by one party, or if the home was purchased and paid off by one party before the start of the marriage. Real estate may also be excluded from the division of marital property if it is included in a valid written agreement, such as a prenuptial or postnuptial agreement. 

In Illinois, all marital property is eligible to be divided during a divorce, and the courts seek to provide for an equitable distribution — that is, a fair division of property between spouses, based on a number of important factors including each partner’s contributions to the marriage and their future opportunities for acquiring assets or income. 

In making a judgment about the marital residence, the court may consider matters such as the allocation of parental responsibilities,  the length of the marriage, each party’s contributions to the household during the marriage, the value of the property, the present and future economic circumstances of each party, potential tax consequences, and whether the apportionment is in lieu of or in addition to spousal maintenance, among other factors.

Based on the situation, a judge may also choose to order the parties to list and sell the home, with both parties receiving an equitable share from the proceeds based on the criteria discussed above. 

Decisions about the marital residence may also be settled through mediation. For example, one spouse may ultimately negotiate to keep the property by buying out the other — breaking their ex-spouse’s financial ties to the home and minimizing the risk of issues cropping up in the future due to co-ownership.

Have Any More Questions About Divorce or Family Law?

Understanding divorce and family law matters in Illinois can be confusing and exhausting, even under the best of circumstances. Fortunately, you don’t have to go through this stressful time alone.

Interested in learning more about what may happen to your home — or any other important assets — during a divorce? We are here to move the conversation forward, and help make sure that you get the answers you’ve been searching for. 

At The Law Offices of J. Jeltes, Ltd., we make it our mission to ensure that our clients understand the divorce process at each and every step of the way. Our attorneys and staff are skilled in handling legal matters in some of life’s most challenging family transitions, including divorce and the many considerations that go along with it — such as issues of property division, maintenance (formerly spousal support or alimony), allocation of marital debt, parental responsibility, and parenting time. 

Our legal professionals are driven, attentive, and dedicated to achieving the best results possible. We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals.

If you have any more questions about any aspect of divorce or family law in Illinois, don’t hesitate to reach out to our team of experienced and compassionate advocates to get the discussion started.