There used to be a very specific order in which people did things: they got engaged, they got married, they bought a house and then they had a baby. At least that’s what they told us.
Now, people often get engaged, buy a house and then get married (and there might be a baby before or during all of that).
What happens to a house that is bought before marriage and/or during an engagement if the couple eventually get divorced in Illinois?
Houses bought before marriage are divided depending on who is on the deed.
If Both Parties Are On The Deed Before Marriage In Illinois
If both parties are on the deed to the house, an Illinois divorce court can divide the property.
A deed is “A written instrument by which land is conveyed.” Black’s Law Dictionary (11th ed. 2019)
The deed controls who owns the land. If both parties own the land before the divorce, an Illinois divorce court can deem the land/building non-marital property but still divide the land.
“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)
Non-marital property is “property acquired before the marriage” 750 ILCS 5/503(a)(6)
“[I]t is the parties’ obligation to present the court with sufficient evidence of…the property [and its value]” In re Marriage of Smith, 114 Ill. App. 3d 47, 54 (Ill. App. Ct. 1983)
A divorce court (in theory) should deem the property to be non-marital. Therefore, the property should only divisible via a partition action (but this never happens which I will explain later).
“The court shall ascertain and declare the rights, titles and interest of all the parties in such [a partition] action, the plaintiffs as well as the defendants, and shall enter judgment according to the rights of the parties…If the court finds that a division can be made, then the court shall enter further judgment fairly and impartially dividing the premises among the parties with or without owelty. If the court finds that the whole or any part of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof…then the court shall order the premises not susceptible of division to be sold at public sale in such manner and upon such terms and notice of sale as the court directs. If the court orders the sale of the premises or any part thereof, the court shall fix the value of the premises to be sold.” 735 ILCS 5/17-105
This requires the sale of the property (if indivisible…and all houses are indivisible) to be done at a sheriff’s sale. Stadnyk v. Nedoshytko, 2017 IL App (1st) 152103-U
No one is going to give you a good price for your house at a sheriff’s sale (which is an auction for distressed properties, usually)
So, in lieu of going through a division of assets resulting in a sheriff’s sale, the divorce court can consider the partition action because it includes the same parties as the underlying divorce.
Illinois law encourages “the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the same issues pending in another action.” Skolnick, 32 Ill.2d at 59, 203 N.E.2d 428.
Divorce courts have the authority to bypass the partition act and divide the property based on the Illinois Marriage And Dissolution of Marriage Act (which provides a lot more direction).
“Where…the primary marital asset is the marital residence, and where that asset is held in multiple tenancy between spouses, it is not an abuse of the chancellor discretion to conclude that the public policy embodied in the Marriage and Dissolution of Marriage Act would be circumvented if the partition action were to proceed.” In re Marriage of Clearman, 407 NE 2d 189 – Ill: Appellate Court, 3rd Dist. 1980 (citations omitted)
The Illinois Marriage and Dissolution of Marriage Act allows property to be divided “in just proportions.” This means the court can consider the contributions of each spouse in acquiring the asset and the needs of each spouse after the divorce.
Even if a contribution and needs arguments do not favor you in the division of a pre-marital house in a divorce, you would still prefer to use the Illinois Marriage and Dissolution of Marriage Act in lieu of a partition action. Otherwise, you will have to sell the house at the presumably low prices garnered in sheriff’s sale.
If One Party Is Not On The Deed Of A House Bought Before Marriage In Illinois
If one party is not on the deed to a house purchased before marriage…they are probably NOT going to be awarded any portion of that property.
Previously in Illinois, “property purchased prior to marriage but in contemplation of marriage should be classified as marital property.” In re Marriage of Jacks, 558 NE 2d 106 – Ill: Appellate Court, 2nd Dist. 1990
This is NO LONGER THE LAW. The Illinois Marriage and Dissolution of Marriage Act has since been updated as of 2016.
“Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.” 750 ILCS 5/503(a)
Furthermore, the written contract is what governs all land transfers. If your name is not written somewhere associated with the land…you do not own that land in Illinois.
“No action shall be brought to charge any person upon any contract for the sale of lands, … interest in or concerning them…unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2
What If The Home Was Purchased In Contemplation Of Marriage Before The Law Changed in 2016
What if the property was purchased in contemplation of marriage before 2016 when Illinois law allowed contemplation of marriage to converted otherwise nonmarital property into marital property?
Laws that look to the past are called “ex post facto” which is latin for “after the fact.”
Criminal laws that look backwards are unconstitutional. “No…ex post facto Law shall be passed.” U.S. Const. art. I, § 9.
The bar against laws that apply retroactively only applies to criminal laws. “It is only in criminal cases, indeed, in which the danger [of ex post facto laws are] to be guarded against” Calder v. Bull, 3 U.S. 386, 399 (1798)
Divorce is not criminal law. New divorce laws can apply to old facts.
“[I]t is well settled that a statute is not [barred because it can be deemed] retroactive just because it relates to antecedent events, or because it draws upon antecedent facts for its operation.” United States Steel Credit Union v. Knight, 32 Ill.2d 138, 142, 204 N.E.2d 4 (1965)
New laws can be applied to old facts if there is no “retroactive impact.”
“If there would be no retroactive impact, as that term is defined by the court, then the amended law may be applied. If, however, applying the amended version of the law would have a retroactive impact, then the court must presume that the legislature did not intend that it be so applied.” Commonwealth Edison Co. v. Will County Collector, 749 NE 2d 964 – Ill: Supreme Court 2001 (citations omitted)
“The application of an amendment [to an existing law which applies] to an existing controversy does not necessarily constitute retroactivity.” First of America Trust Co. v. Armstead, 664 NE 2d 36 – Ill: Supreme Court 1996
The bar against civil laws applying retroactively only applies to vested rights in Illinois.
The Illinois supreme court said that Illinois courts should “apply the law that applies by its terms at the time of the [decision], unless doing so would interfere with a vested right.” First of America Trust Co. v. Armstead, 664 NE 2d 36 – Ill: Supreme Court 1996
This begs the question as to what is a vested right.
“Although not capable of precise definition, a vested right is a complete and unconditional demand or exemption that may be equated with a property interest.” First of America Trust Co. v. Armstead, 664 NE 2d 36 – Ill: Supreme Court 1996
When someone does NOT have their name on the deed of a house or any written documents indicating an interest in their house, they do not have a property interest in that house per the statute of frauds. Therefore, there is no vested right to which a law cannot retroactively apply.
Perhaps the facts could be so textured as to suppose that a pre-2016 couple had intended the house to be marital, such as the spouse not on the deed having contributed to the downpayment.
Despite ex post facto laws not applying in civil situations and despite the statute of frauds barring oral contracts, an appeal to fairness is still valid (if likely unsuccessful).
“The question of the validity of the application of a statute rests on subtle judgments concerning the fairness or unfairness of applying the new statutory rule to affect interests which accrued out of events which transpired when a different prior rule of law was in force. One fundamental consideration of fairness is that settled expectations honestly arrived at with respect to substantial interests ought not to be defeated. The determination of whether the application of the statute unreasonably infringes upon the rights of those to whom it applies involves a balancing and discrimination between reasons for and against the application of the statute to this class of individuals.” Moore v. Jackson Park Hospital, 95 Ill.2d 223, 241-42, 69 Ill.Dec. 191, 447 N.E.2d 408 (1983) (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.)(citations omitted)
Any argument based on fairness will also be an argument based on contribution which the Illinois Marriage And Dissolution of Marriage Act specifically provides for.
Contribution To A Non-Marital Property And Divorce In Illinois
Illinois divorce courts can consider contributions made by the spouse who is not on the title.
“When a spouse contributes personal effort to non-marital property, it shall be deemed a contribution from the marital estate, which shall receive reimbursement for the efforts if the efforts are significant and result in substantial appreciation to the non-marital property” 750 ILCS 5/503(c)(2)(B)
Those contributions must be proven with specific facts. “No such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift.” 750 ILCS 5/503(c)(2)(A)
Mortgage payments do not count as marital contributions to a non-marital estate. “[A] marital estate is not entitled to reimbursement for mortgage payments toward nonmarital property when the marital estate has already been compensated for its contributions by use of the property during marriage.” In re Marriage of Crook, 813 NE 2d 198 – Ill: Supreme Court 2004
A mortgage payment to a house you do not own is indistinguishable from paying rent. Any reduction in liability and increase in equity due to the mortgage payment is merely reimbursement for the mortgage payment.
“[T]he parties benefited from living in the house for a substantial period of time, [so] the court could reasonably have found that the marital estate had already been compensated for its contributions.” In re Marriage of Snow, 660 NE 2d 1347 – Ill: Appellate Court, 4th Dist. 1996
If the mortgage against the house gets subsequently refinanced in both parties’ names without putting the deed in both parties’ names, that debt becomes a marital debt.
“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a) (emphasis mine)
That marital debt can then be allocated between the parties. Because the property is fixed to the debt…the property can be divided between the parties, too.
If the house is determined to be marital, the allocation of the value of the house can be made by refinancing the property and paying the other spouse their portion of the value, by selling the house or by reallocating other assets in lieu of one spouse’s share of the house.
A spouse who has the children most of the time will likely get first dibs on keeping the marital property.
“It is true an award of the marital home in favor of the custodial parent is normally preferred.” In re Marriage of Minear, 679 NE 2d 856 – Ill: Appellate Court, 4th Dist. 1997
Buying a house is a good thing. Getting engaged is a good thing. Let’s hope it all works out. If not, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
