Posted on April 21, 2020

Buying A House During A Divorce In Illinois

Divorce takes a long time but life still goes on.  People get separated and want to start their new lives without their spouses.  This always means moving out but to where?  An apartment?  A rental house in the same school district as the kids? Even buying a house? Can a person really get started on their new life by buying a house during a divorce in Illinois?

There are no rules in an Illinois divorce that automatically allow for or disallow a giant purchase like a buying a home even during a divorce.

The biggest reason not to buy a house while getting a divorce in Illinois is that all assets acquired before the entry of the final divorce documents are still marital property. Property acquired by either spouse during the marriage is presumed to be marital property regardless of how title is actually held. In re Marriage of Dann 2012 IL App(2d) 100343. This presumption includes property held solely in one parties’ name. In re Marriage of Foster 2014 IL App (1st) 123078.

Property purchased before the divorce is final can be divided by an Illinois divorce court.  It does not matter if you are already separated.

The court will likely award you the house and value the house at the house’s purchase price. But, that’s a big asset and liability in your column with very little wiggle room for negotiation as to what will be allocated to your spouse in exchange.

For example, if you have a $ 500,000 house and 11 $ 50,000 Faberge eggs, the court is probably going to award you the house and your spouse the Faberge eggs even though the eggs are worth more.  That is because you cannot divide up the house into separate units like you can with the Faberge eggs.  In this example, you could ask the court to sell the last Faberge egg out of fairness but the court doesn’t have to.  Illinois is a equitable division of assets state.  The court can allocate how it wants…not according to a formula.

Things You Should Resolve Before Buying A House During An Illinois Divorce

I always advise my clients against buying a home during a divorce because there are simply too many unknowns until a divorce is finalized.

Here are things you should probably know for sure before buying a house during (or after) a divorce in Illinois.

  • How much child support/maintenance you will receive or pay?
  • Who will the kids spend nights with during the school week?
  • Who will have responsibility for the debts in both your names or either of your names?
  • Who will have what assets at the end of the divorce?
  • Will your parenting agreement have a paramour clause?
  • What happens to the house you used to live in?

Realistically, none of these will be known until the divorce is finalized.  The division of debts and assets never happens until the matter is finalized.

Additionally, some items are never finalized and are amorphous and/or modifiable until your kids are old or maintenance expires. Child support, maintenance, and parenting time are likely to be constantly in flux for you and your spouse.

People who buy houses prior to divorce, in my experience, always want to move in with a boyfriend or girlfriend.  Predictably, this raises the ire of the opposing party and provokes opposition to purchasing a house during a divorce (and they definitely can oppose it).

Temporary Agreement To Buy A House During An Illinois Divorce

The biggest stumbling block to buying a house during an Illinois divorce is getting the mortgage for the new house.

Many lenders are going to require that your spouse agree that the down payment to the house is an advanced distribution to you.  You’ll probably need an agreed order from the court saying that “the money for the down payment for the house is an agreed early distribution of marital assets to the purchasing spouse without prejudice to any later equitable division of assets” in order to get approved by the lender.

All orders before the divorce is final are temporary orders, but lenders don’t seem to know that (neither do most family law attorneys).  But, Illinois judges seem to honor temporary orders when they make their final judgments.

If your spouse wants to enter into a temporary agreed order for the purposes of getting a mortgage for a divorce before your divorce is even over…make them pay for it. Always ask for something in exchange.

I would recommend that the non-purchasing spouse should ask for the current marital home in exchange for approving a loan for a new home.  After all, we know the non-purchasing spouse doesn’t want the marital home anymore.

How Do I Stop My Spouse From Buying A House During An Illinois Divorce?

To stop your spouse from buying a house during an Illinois divorce you should file a motion for a temporary restraining order preventing your spouse from entering into any contracts for the purchase of anything above $1000.  Just say in your motion that “upon information and belief” you believe that your spouse will be spending marital funds and incurring marital debt  via the purchase of a house.

The temporary restraining order will be temporary because all motions are temporary until the final entry of the judgment for dissolution of marriage.

The temporary restraining order will also give you leverage in negotiating with your soon-to-be-ex.  You know they want a house…but they don’t know what you want. That’s a good position to negotiate from.

Additionally, to aggravate your spouse that bought a house, you can ask that a paramour clause be included in the parenting agreement (if you have kids).  A paramour clause says that each party must wait X months to introduce children to a new boyfriend or girlfriend and Y months until that person can sleep over when the children are also sleeping over.  This obviously throws a huge monkey wrench into any house purchase based on creating “a new family.”

In my experience, paramour clauses do not get ordered by divorce judges in Chicago, Illinois.  Judges in Chicago say, “Life moves on, that’s why you’re getting a divorce” and “the more people that love these kids, the better.”

So, if you want a paramour clause, whether to aggravate your soon-to-be-ex or protect your children’s emotional well-being, you’ll need to get your spouse to agree to the paramour clause.

Most people do agree to these little clauses in a final divorce document. Half of all divorce litigants just don’t care that much.  And, as I always say, “if you don’t ask, you don’t get.”

If you want to buy a house while your divorce is pending or you want to make the most of your spouse buying a house during your divorce, call my Chicago family law firm and schedule a free consultation with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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