Who Gets the House in an Illinois Divorce?
By Jonathan D. Steele | Updated January 2025
Who Gets the House in an Illinois Divorce?
Illinois law doesn't specify which spouse gets the marital home. Under 750 ILCS 5/503, courts divide property "equitably"—fairly, but not necessarily 50/50. The parent with majority parenting time often receives the home to maintain stability for children. Options include: one spouse buys out the other, selling and splitting proceeds, or co-owning temporarily until children age out.
How Illinois Courts Decide Who Keeps the House
Illinois is an equitable distribution state—not a community property state. This means the court divides marital property fairly based on your specific circumstances, not automatically 50/50.
Under 750 ILCS 5/503(d), courts consider these factors:
- Each spouse's contribution to acquiring the property
- Value of property assigned to each spouse
- Duration of the marriage
- Economic circumstances of each spouse after division
- Custodial provisions for children—this is often decisive for the house
- Whether property is marital or non-marital
- Tax consequences of the division
In practice, the court weighs whether disrupting children's housing serves their best interests against whether the custodial parent can actually afford to keep the home.
Your Three Options for the Marital Home
Option 1: One Spouse Buys Out the Other
The most common solution when one spouse wants to stay. You must:
- Get a professional appraisal to determine current value
- Subtract mortgage balance to calculate equity
- Pay your spouse their share (typically 50% of marital equity)
- Refinance the mortgage in your name alone
Example: Home worth $500,000, mortgage balance $300,000 = $200,000 equity. You'd owe your spouse $100,000, paid via refinance cash-out, trading retirement assets, or over time.
Option 2: Sell and Split Proceeds
Often the cleanest break, especially when neither spouse can afford the home alone or both want fresh starts. The court orders the home listed, sold at fair market value, and net proceeds divided.
Consideration: Selling costs (agent commission, closing costs) typically run 8-10% of sale price, reducing what each spouse receives.
Option 3: Deferred Sale (Delayed Distribution)
One spouse (usually the custodial parent) stays in the home until a triggering event—typically when the youngest child turns 18, graduates high school, or the parent remarries/cohabitates.
Warning: This requires ongoing cooperation. Who pays for repairs? What if property values drop? A detailed agreement is essential.
Marital vs. Non-Marital Property: Critical Distinction
What's Marital Property?
Property acquired during the marriage is presumed marital and subject to division. If you bought the house after getting married using income earned during marriage, it's marital property—regardless of whose name is on the title.
What's Non-Marital Property?
Property you owned before marriage, received as a gift or inheritance, or excluded by valid prenuptial agreement is generally non-marital. You keep what's yours.
The Commingling Trap
Non-marital property can become marital if you "commingle" it. Common scenarios:
- You owned the house before marriage but refinanced with your spouse on the mortgage
- You used marital income to pay the mortgage or make improvements
- You added your spouse to the title
- The increase in home value during marriage may be partially marital even if the original equity is not
This is where experienced legal counsel matters. Learn more about marital vs. non-marital property.
Protect Your Equity in the Marital Home
Whether you want to stay or need to sell, getting the property division right is critical. I'll help you understand your options and fight for a fair outcome.
Schedule Free ConsultationOr call (312) 726-5015
Frequently Asked Questions
Does the wife automatically get the house?
No. Illinois law is gender-neutral. The court considers factors like custody, financial ability to maintain the home, and each spouse's contributions—not gender.
Can I keep the house if I owned it before marriage?
Generally yes, if you kept it separate. But if you refinanced jointly, added your spouse to the title, or used marital funds for the mortgage, it may have become partially marital.
What if my spouse won't leave the house?
You can petition for exclusive possession of the marital home. Courts grant this when living together is untenable, especially if there's domestic violence or extreme conflict.
What if we're underwater on the mortgage?
If you owe more than the home is worth, you still need to address it in divorce. Options include short sale (with lender approval), one spouse assumes the debt, or foreclosure as a last resort.
How does custody affect who gets the house?
Significantly. Courts prioritize children's stability. The parent with majority parenting time often receives the home—but must prove they can afford it long-term.