Posted on October 20, 2020

Who Pays The Mortgage During An Illinois Divorce?

Mortgages typically consume 25 to 33 percent of a household’s total income. A mortgage is usually a household’s biggest expense. Additionally, mortgages are usually tied to a household’s biggest asset, the marital home. Failure to pay a mortgage means a married couple’s biggest asset is at risk of foreclosure. For all these reasons, the mortgage payment needs to be addressed during Illinois divorce proceedings. So, who pays the mortgage during an Illinois divorce?

Is The Mortgage A Marital Debt?

In regards to debt, in the Illinois divorce process, the first step determining whether a debt is “marital” or “non-marital.”

“The court shall make specific factual findings as to its classification of assets [and debts] as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

The distinction between marital vs. non-marital property and debts is determined by whether the property or debt was acquired before or after the marriage.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

Even being engaged does not make a property or debt marital. So, buying the marital home while planning to get married does not make a property marital merely because of the parties’ intentions.

“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)

Non-marital debt will remain with the party whose debt is in their name.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

So, the court will likely not order either party to pay the mortgage on a non-marital debt. If the person wishes to not pay the mortgage and have that property go into foreclosure, that will be their prerogative.

If the property and/or debt is marital, then both parties have an obligation to maintain the property and the mortgage attached to it.

Motion For Contribution To Marital Expenses

One of the most common initial motions in an Illinois divorce is the “Motion For Contribution to Marital Expenses.”

The Illinois statute actually does not empower such a motion, specifically. Motions for contribution to marital expenses are usually brought generally under the temporary relief statute, 750 ILCS 5/501 which allows for “appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 5/501(a)(3)

Illinois divorce courts are quick to maintain the status quo.  Whomever was paying the mortgage will be asked to continue paying the mortgage until further order of court.

Of course, during the pendency of a divorce, people aren’t always living in the same house.

The party living in the home can be expected to make a full or partial contribution to the marital home’s mortgage as it will be assumed the other party has additional rental expenses.

Equity In The Marital Home

If the home and the mortgage are marital, then each payment of a mortgage reduces the mortgage and thereby increases the equity in the home. This increase in equity will be an increase in the value of a marital asset. 

The marital asset will not be divided amongst the parties until the divorce is finalized and the Marital Settlement Agreement is entered.

So, one-sided payments against the mortgage by one party during the separation will contribute to an increase in the value of a marital asset that will be divided later.  This doesn’t seem very fair.

In Illinois, either party can request that a marital asset be divided “equitably.” That is to say, you can appeal to fairness in order for a court to make a division that is not 50/50.  Sole payments against a mortgage for a house you may not have even lived in would be good cause to award the mortgage payor a greater share of the proceeds from the equity of the house. 

In dividing a marital asset, an Illinois court shall consider, “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property…whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)

Dissipation Of Assets For Failure To Pay A Mortgage

Failure to pay the mortgage may result in a dissipation claim by the party not obligated to pay the mortgage.

“Dissipation of assets is the use of an asset for an illegal or inequitable purpose, such as a spouse’s use of community property for personal benefit when a divorce is imminent.” Black’s Law Dictionary (10th ed. 2014)

So, spending money on something in lieu of the mortgage during the divorce is going to be considered dissipation of assets.

The real issue is the waste caused by the failure to pay the mortgage.

“The concept of dissipation is premised upon waste” In re Marriage of Miller, 796 NE 2d 135 – Ill: Appellate Court, 5th Dist. 2003

“Dissipation of marital assets by one spouse in contemplation of dissolution of marriage is an unacceptable practice that will not be sanctioned… one of the relevant factors to be considered by the court in dividing marital property is the dissipation in value of the marital and nonmarital property.” IIn re Marriage of Smith, 448 NE 2d 545 – Ill: Appellate Court, 1st Dist. 1983

The failure to pay a mortgage can reduce equity as the mortgage against the marital property increases with interest in fees.  This dissipation of assets becomes even more stark should the house fall into foreclosure due to the failure of one party to pay the mortgage. A foreclosure usually extinguishes all equity in the house after sales fees, etc. Half of the value the other spouse should have gotten will be awarded to that spouse via other marital assets.

Who Should Pay The Mortgage During An Illinois Divorce?

Whoever is going to keep the house should start paying the mortgage immediately. If that person can’t pay the mortgage now, they won’t be able to when they are awarded the house. 

The simplest way to both pay the mortgage and determine if one spouse will be capable of maintaining the mortgage alone is to award that spouse temporary alimony in lieu of any contribution to marital debts.

If the party cannot pay the mortgage with their current income and temporary maintenance and/or child support, then the home must be put up for sale immediately to divest the parties of this unsustainable obligation. 

Do I Get Credit For Mortgage Payments I Made During The Marriage?

If the property is deemed marital, the property will simply be divided equitably with a possible consideration as to who paid the mortgage before and during the divorce.

If the property is deemed non-marital and one party will be awarded the entire property, the other party is not entitled to any kind of repayment for their contribution to the mortgage at any time.

Even if marital money was used to pay for a non-marital mortage, “[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, 211 Ill.2d 437, 454, 286 Ill.Dec. 141, 813 N.E.2d 198 (2004)

There is a possibility that the party who is not awarded the house will be awarded a portion of the mortgage principal they paid off during the divorce.

If you’re going through a divorce and struggling with paying your mortgage, contact my Chicago, Illinois family law firm for a free, no-obligation consultation with an experienced Chicago divorce attorney.

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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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