Can I Be Forced to Sell My House in My Illinois Divorce?

• Marital property division rules in Illinois divorce
• When would a court-ordered sale be necessary?
• What happens during the home-selling process?
• Is Illinois a community property state?
• FAQ
• References

In a worst-case scenario, the Illinois court could force you to sell your marital home as part of your divorce. But a forced sale isn’t your only option; there are ways to maintain more control over your assets as you divide your property.

Here’s what you need to know. 

The court will step in if you can’t reach a settlement without their help

If you can’t work with your spouse to find a solution regarding your shared property, the court will step in. As part of their final ruling, you could be forced to sell your home as part of your divorce settlement, even if you don’t want to. 

Fortunately, many divorcing couples are able to avoid this. We’ll explain that more in a moment. But first, let’s take a look at marital property rules in divorce.

Marital property division rules in divorce

Almost anything you acquire during your marriage is marital property. Per Illinois law, it doesn’t matter whose name is on your home’s title. If you bought a house as a married couple, you must split it equally on divorce. 

Important exceptions exist. For example, if you inherit a home or someone gives you property, it could be yours alone. But those arrangements must be supported by paperwork and maintenance. 

If you commingle expenses or don’t take steps to ensure that the gifted property doesn’t slide into common use, it could still become marital property. 

State law says that Illinois courts can order the sale of marital property, and they can determine how the proceeds are split between both parties.

When would a court-ordered sale be necessary?

Think of a court order as a nuclear option. It’s only necessary when you’ve tried all other methods and simply can’t agree on a path forward.

Getting a divorce takes time, coordination, and conversation. You’ll trade paperwork with your spouse several times, and you’ll negotiate tricky questions about splitting your estate. You might trade something your spouse wants (like the family car or a boat) for sole ownership of the home. Or, you might agree to buy out your partner’s share of the home. 

After an agreement like this, paperwork is required. The home’s title should be adjusted and the mortgage refinanced. These steps ensure no hassles later. Couples who take these steps don’t need a court-ordered sale. 

However, if you can’t agree with your spouse on how much the home is worth, who should keep it, or who should sell it, the court’s assistance is required. Essentially, if you and your ex are at a standstill and unable to shift your points of view toward resolution, the court will make the decision for you.

Suggested: Refinancing a Divorce Buyout

What happens during the home-selling process?

A home sale sparked by a divorce is similar to any other real estate transaction. The home will be placed on the market, and someone will buy it. The profits (if any) will be dispersed as per your divorce decree.

If you collaborate with your spouse, you’ll agree on how much the home is worth. You’ll determine how to handle profits and losses caused by the transaction. And you’ll put all of those details in your divorce agreement. Typically, you’ll wait until the divorce is finalized to sell the home. 

If you can’t agree, Illinois law says the courts can determine the value of your property. A judge could call in an expert (like an assessor) to determine the fair market value of the home on the day your divorce is final. That number would specify who gets what from the sale, and the transaction would then proceed accordingly. 

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Is Illinois a community property state?

In a community property state, all marital property is split right down the middle during a divorce. Illinois is very different. 

Illinois is an equitable property state. Laws require that marital property be divided equitably, which may not mean equally. When determining what’s equitable or not, the courts can use factors such as the following:

• Contributions made to the mortgage or upkeep of the home 
• Financial circumstances of both parties 
• Likelihood that either party could acquire assets in the future 
• Whether a party used marital income for something that didn’t benefit both parties 
• The length of the marriage 
• Allocation of funds for children 

A court case can be complex, and you must provide the court with proof of your financial circumstances. This isn’t always easy to do, but preparation can help a great deal. 

FAQ

What is considered marital property in Illinois?

Marital property in Illinois is anything a couple buys together while they are married regardless of whose name is on the paperwork. If you buy a home after your wedding day, this is marital property. 

What is considered non-marital property?

Illinois laws outline what isn’t marital property. That includes the following:

• Property acquired as a gift 
• Property acquired before the marriage 
• Property acquired by one party after they’re legally separated 
• Property excluded via a premarital or postnuptial agreement 
• Property obtained by a judgment that excludes the other spouse 

Is a home owned before marriage considered marital property in Illinois? 

Not always. If you owned your home before your wedding day, and you didn’t use shared funds to pay the mortgage, it isn’t marital property. But if your sole property is mingled with shared items (which is really easy to do), it could be considered a shared asset. 

Final note

Remember that the forced sale of a home is not the only option in divorce. To avoid it, however, requires collaboration between yourself and your ex-partner.

If you find you and your spouse simply can’t find common ground, there are solutions available. One of the best is to hire a divorce mediator. This is a professional who has been trained in conflict resolution. They can work with you and your spouse to come up with a division of assets that you both appreciate. Perhaps best of all, they may be able to help you avoid the forced sale of your home.

No one gets everything they want in a divorce, but in mediation, you can find a mutually beneficial solution. Together, you could find a solution that seems right for both of you. 

Suggested: What to Ask for in Divorce Mediation

References