Most people’s biggest asset is their house. But, the marital home is typically held by two people as a couple together because, as a couple, they were eligible for the mortgage.
Outside of the tax advantages of paying a mortgage every month, a mortgage is also an enforced savings program. If you own your house and have lived in your house for more than two years you don’t even have to pay the capital gains on the increased value of your house at the time of sale.
In short, owning a house is a big financial deal. So, what happens to your house when you get a divorce?
During a divorce, one party typically moves out of the marital home. This is something I recommend my clients do as nothing good can come from living with someone you are trying to break up with. It’s bad enough seeing a toilet seat left up by someone you love, imagine your reaction when someone you hate did that…or worse.
Moving out of the marital home creates an opportunity for gamesmanship on the part of both parties.
The party who is still living in the house can ask or expect the other party to contribute to half the mortgage.
The party who is not living in the house can watch the equity of the marital home increase with every mortgage payment and perhaps a natural increase in the value of the real estate while perhaps making no contribution to the expenses of the house.
And in either of these situations, the party getting the benefit of the bargain can purposely extend and delay the finalization of the divorce for at least two years.
The solution to this problem is to file a Motion To Sell The Marital Residence.
Illinois statutes allow a court to “make judgments affecting the marital property, as many be just and may enforce such judgments by ordering a sale of martial property, with proceeds therefrom to be applied as determined by the court” 750 ILCS 5/503(i).
The judge typically says, “You’re going to sell the house eventually. So, let’s get the sale process started now.” This is especially true as springtime approaches.
If the house is not marital property, then the house shall not be sold before the divorce is finalized. If the house is not marital property, the house will probably not be ordered sold at all.
If one party wants to keep the house in the final settlement, that party usually offers a global settlement very soon after the filing of the Motion To Sell The Marital Residence.
But, if either party wants the marital home sold that house will be sold.
If the parties agree on a real estate agent to represent them both (they are still co-owners) then that real estate agent will sell the house with the cooperation of the parties.
If the parties do NOT agree on a real estate agent, the court will appoint a real estate agent. I, personally, always appoint the BeRealty real estate brokerage. They have been beyond reproach in being respectful to both parties even while representing a party who was hesitant to sell.
When a marital house is ordered to sell. There is another opportunity for gamesmanship…by the buyer. A savvy buyer would look up the sellers on the Cook County Clerk Docket to see if they were, in fact, getting divorced. If the buyer subsequently looked up the order to sell the marital house, the buyer could simply wait out the parties until the court ordered them to lower the price of the marital house.
Luckily, there’s a solution to this problem. The parties’ lawyers can reference a “listing letter” in the order to sell the marital home. This “listing letter” will describe when and how the price of the marital home shall be reduced. Example: “Every two months the house is not sold, the parties shall reduce the price by $ 5,000.” If the listing letter is merely referenced and not publicly available in the order, the buyer has no idea how long he or she can wait out the seller.
When the marital home is finally sold and the divorce is not yet finalized, one of the lawyers (or perhaps the attorney in charge of the sale of the real estate) shall hold the proceeds in escrow until the final division of marital assets is made.
When the marital home is finally sold, in my experience, both parties have shaken the cobwebs off and are ready to move on to the next chapter of their lives. Both parties move into smaller separate place. If there are kids, the kids get used to the new normal. People stop holding onto the past and start dating. The final settlement is usually entered very shortly afterwards.
If you have questions about selling your marital house during a divorce call my Chicago Law office today for a free consultation.
BeRealty is an amazing real estate brokerage whether you’re getting divorced or not. They’re just 5 miles from my office. Directions below: