Who Gets the House? Dividing Real Property in Divorce Proceedings

One of the most emotionally and financially significant questions in a divorce is: Who gets the house? For many couples, the marital home represents more than just bricks and mortar. It’s the place where children were raised, memories were made, and significant financial resources were invested.

In Illinois, the division of real property, including the family home, follows specific legal principles that may surprise those assuming everything is split 50/50. Here’s what you need to know about how courts approach real estate during a divorce and what options might be available.

Illinois Is an “Equitable Distribution” State

Illinois follows the principle of equitable distribution, not equal distribution. See 750 ILCS 5/503. This means that the court will divide marital property, including real estate, fairly, but not necessarily equally.

Under 750 ILCS 5/503, the Illinois Marriage and Dissolution of Marriage Act governs how property is categorized and divided. The court will first determine whether the house is marital or non-marital property, and then, if it is marital, decide how to fairly divide it.

Step One: Is the House Marital or Non-Marital Property?

Before a court decides who gets what, it must determine what belongs in the marital estate. In general:

• Marital property includes most assets acquired by either spouse during the marriage, regardless of whose name is on the title or deed.
• Non-marital property includes property acquired before the marriage, by gift or inheritance, or excluded by a valid prenuptial agreement.

See 750 ILCS 5/503(a).

Examples:

• If you and your spouse bought the house during your marriage, it’s likely marital property—even if only one spouse’s name is on the deed.
• If one spouse owned the home prior to the marriage, it may be considered non-marital—unless marital funds were used to pay down the mortgage, improve the property, or if the other spouse contributed to its upkeep. In those cases, the non-owning spouse may have a reimbursement claim or the property may have been transmuted into marital property.

Because these distinctions can get legally complex, especially when both marital and non-marital funds were used, a careful legal analysis is often necessary.

Step Two: How Is Marital Real Estate Divided?

If the home is determined to be marital property, the court has several options for dividing its value. The key consideration is what is equitable under the circumstances—not simply who wants to stay in the home.

The court will consider a variety of factors under 750 ILCS 5/503(d), including:

• Each spouse’s contribution to the acquisition, preservation, or improvement of the home (financial or non-financial, such as homemaking or child-rearing)
• The length of the marriage
• Each spouse’s economic circumstances, including income and earning potential
• Whether one spouse will have primary parenting time with children
• Whether it is desirable to keep the family home with the spouse who will be caring for the children
• The tax consequences of any property division

Common Outcomes for the Marital Home

1. One Spouse Keeps the Home

A common outcome is for one spouse to retain the home, particularly if they will have majority parenting time with the children. In this case, the spouse keeping the house typically “buys out” the other spouse’s interest, often by:

• Refinancing the mortgage in their name alone
• Paying a cash settlement equal to the other spouse’s share of the home’s equity
• Offsetting the value by relinquishing claims to other marital assets (e.g., retirement accounts)

2. Sell the House and Split the Proceeds

If neither spouse can afford to keep the house, or if doing so is not financially practical, the court may order the property to be sold, and the proceeds divided equitably. This is common when both spouses want a fresh start, or when keeping the house would cause financial strain.

3. Deferred Sale

In some cases, particularly where children are involved, the court may allow the custodial parent to remain in the home temporarily (often until the youngest child turns 18), with the understanding that the house will be sold later. This is known as a “deferred sale” or “delayed distribution” and requires a detailed plan about who pays the mortgage, taxes, and upkeep during the interim. A deferred sale should be negotiated and included in either an agreed order entered by the Court, or in your Marital Settlement Agreement (“MSA”).

Can We Decide Outside of Court?

Yes! In fact, most divorcing couples resolve property division issues through settlement rather than a trial. Spouses can agree on who keeps the home, how much one will pay to the other, and whether to sell.

This agreement becomes part of the MSA and is subject to court approval. As long as the agreement is fair and not the result of coercion or fraud, the judge will usually approve it.

Final Thoughts

Dividing real property in a divorce is rarely just about dollars and cents. Emotions, memories, and future plans all come into play. But under Illinois law, the focus remains on what is equitable, not just what each party wants.

If you’re navigating divorce and unsure what will happen to the home, it’s critical to speak with a knowledgeable family law attorney. Contact O. Long Law, LLC today to speak with a family law attorney who can help you protect your interests, understand your rights, and make informed decisions about one of your most significant assets.