Does Illinois split the house 50/50 in a divorce?
No. Illinois splits marital property in a way the judge finds fair, which is not always 50/50. The judge looks at things like what each spouse put into the house, each spouse's income, how long the marriage lasted, and who the children live with. Who caused the divorce does not count. A judge can also let the parent the children live with stay in the home for a while.
Is the house marital property if it's only in my name?
Usually, yes. A house bought during the marriage is treated as belonging to both of you, even if only one name is on the deed. It can stay separate in a few cases:
- One spouse owned it before the wedding.
- One spouse got it as a gift or an inheritance.
- A prenup or postnup keeps it separate.
Even then, if marital money paid down the mortgage, the judge can pay that money back to the marital side. And a house you owned before the marriage but later put in both names is usually treated as marital.
Can we sell the house before the divorce is final?
Yes. Filing for divorce does not freeze the house in Illinois. Most couples sell by agreement. If you can't agree, either spouse can ask the judge to order a sale, or to stop the other from selling. A spouse who sells and spends the money on their own can be made to answer for it when the property is divided.
Do we both have to sign to sell?
In most cases, yes, for the home you live in. Illinois gives each spouse a homestead right in the family home, so the title company will normally want both spouses to sign, even if only one name is on the deed. The title company will confirm exactly who needs to sign before closing.
What happens to the mortgage?
Nothing changes with the lender. Anyone who signed the loan generally stays on it until it is paid off or refinanced. The divorce papers can say who pays, but the lender is not bound by them, and taking a name off the deed does not take it off the loan.
- If you sell: the loan is paid off at closing, as long as the price covers what you owe. If you owe more than the house is worth, the lender has to agree to a short sale.
- If one spouse keeps the house: the lender generally can't call the loan due just because of the divorce transfer, as long as that spouse lives there. The other spouse stays on the loan unless it is refinanced.
Who gets to stay in the house?
Usually both of you can, until the judge decides otherwise. One spouse can ask for the home to themselves while the case is open, but the judge grants it only when a spouse's or a child's well-being is at risk, and usually only after a hearing.
Will we owe tax when we sell?
Often little or none, but timing matters. If you sell while still married and file a joint return, you can usually leave up to $500,000 of profit untaxed. If the divorce is final by December 31 of the year you sell, you can't file jointly, so each of you can leave up to $250,000 of your own share untaxed. To qualify, you generally need to have owned the home and lived in it for 2 of the last 5 years, and a spouse who moved out under a divorce or separation agreement can still count that time. Moving the house from one spouse to the other as part of the divorce is not taxed. Ask a tax preparer before you sign.
How do we split the money?
However your settlement or the judge says. A settlement has to be in writing and approved by the judge. Before closing, have both attorneys agree in writing who holds the money, for example the title company or an attorney, until it can be split. Once the property part of the divorce judgment is final, it generally can't be changed.
What if we fall behind on payments during the divorce?
Act early. The lender can go after anyone who signed the loan, no matter who the divorce papers say should pay. When the judge divides the property, they can take into account who kept paying. If a foreclosure has started, our Illinois foreclosure guide explains the timeline and your options.
How does a cash sale work during a divorce?
One written offer, one price, and one closing date that both of you and both attorneys can see. If the house is a fit, Fair Home Cash may make a written cash offer on it as it is, with no repairs or showings. If you both accept, a title company closes the sale, pays off the mortgage, and handles the money the way your agreement says. Closing often takes about 7 to 28 days once title is clear (an estimate, not a promise). A cash offer is usually lower than what a fixed-up, listed house might sell for, so compare both before you decide.
The honest math on selling during a divorce
An example, not a quote: the house sells for $300,000. The mortgage payoff is $180,000, and Fair Home Cash pays the seller's closing costs and transfer tax, which leaves $120,000. If the settlement splits it 55/45, one spouse gets $66,000 and the other gets $54,000.
The other side of the math is time. If the house sits for six months at $2,500 a month in mortgage, taxes and insurance, that is $15,000 less to split. A listing may bring a higher price. A cash sale can bring a sooner one, with fewer ways for the deal to fall through. Run both numbers before you choose.
This page is general information, not legal or tax advice. Talk to your divorce attorney before you sign anything. For the one-minute version, see the short answer on selling during a divorce. When you request an offer in the form above, tell us who the other owner is and who their attorney is, so both signers are lined up for one sale.
Sources: 750 ILCS 5/503 (dividing property, marital and separate property, court-ordered sales); 750 ILCS 5/501 and 501.1 (orders while the case is open); 750 ILCS 5/502 (settlement agreements); 735 ILCS 5/12-901 and 12-904, and 765 ILCS 5/27 (homestead and signatures); 12 U.S.C. 1701j-3 and 12 CFR 191.5 (keeping the loan after a divorce transfer); 26 U.S.C. 121 and 1041, IRS Publications 504 and 523 (taxes); Consumer Financial Protection Bureau (loans after divorce).
